Our so-called constitutional conservatives treat the national charter the way a certain kind of Christian treats the Bible: They like to carry around copies of it, to wave it at their rivals, to talk about it, and to treat it as a kind of magic item — but if you should suggest they actually read it or apply it, well, that sounds awfully idealistic.
It is painful, and a little embarrassing, to listen to conservatives try to rationalize President Donald Trump’s plainly illegal attack on the government of murderous Syrian caudillo Bashar al-Assad. Each rationalization is shallower and sillier than the last.
First, the Trump apologists insist that what has happened is not “war” but merely . . . something else; that it is — here’s one of those words people use when they want to sound smart —”measured.” Put another way: “Well, Your Honor, think of all the money I didn’t embezzle from the church’s fund for orphans.” Conservatives here are offering the same defense of President Trump that Whoopi Goldberg offered for Roman Polanski: War, but not war war. As my colleague Charles C. W. Cooke pointed out — and it shouldn’t need pointing out — there would not be any question of whether a foreign power’s firing 59 missiles into a U.S. military installation constituted an act of war. Anyone who suggested otherwise would be rightly mocked.
This matters, because the Constitution invests Congress — not the president — with the power to decide whether to go to war. This isn’t a question of some obscure provision such as the emoluments clause — it is clearly spelled out in Article I. The language is unequivocal. It is so obvious that it has reduced some conservatives to arguing that Congress’s constitutional power to declare war is no limit on the president’s power to make war. Put another way: “None of the Ten Commandments explicitly says you cannot break the Ten Commandments.” This is risible sophistry on the Clinton model.
Others argue that the War Powers Resolution is unconstitutional. Perhaps, but if it is, it is because it delegates too much power to the president — power that the Constitution explicitly invests in Congress. It is worth considering that the War Powers Resolution was adopted to constrain executive military ambition, and that none of its criteria licensing immediate executive action with subsequent congressional consultation — an attack on the United States, on U.S. possessions abroad, or on U.S. forces — applies in the matter of Syria. But if you believe that the War Powers Resolution is unconstitutional, then you should be working for its repeal in Congress or its voiding by the Supreme Court.
As the federal courts felt it necessary to make plain to President Barack Obama and his administration: “The president and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress.” Some on the Right have argued that the separation of powers in effect renders the president above the law, that he cannot be made subordinate to statute. The absurd implications of this would including the president’s being immune from Supreme Court rulings as well.
To see conservatives adopt the outcome-above-order attitude in a matter as important as launching a preemptive war in Syria is dispiriting.
Still others have said that the president’s attack on Syria is justified because Syria violated international law by using chemical weapons. But treaties and international agreements require enabling legislation if they are to have any legal force in the matter of U.S. government operations. International accords on chemical weapons do not preempt Article 1 of the Constitution. Neither does the Chemical Weapons Implementation Act, which in putting U.S. law into the service of the Chemical Weapons Convention tasks the State Department and the Treasury Department with various duties, but has no effect on Congress’s war powers. Until five minutes ago, conservatives were nearly unanimous in scoffing at the notion that international law or foreign law ought to be considered dispositive — if it is considered at all — in the domestic context. Some of the more energetic partisans on the right wanted judges impeached for citing foreign law. Now, suddenly, they are converts.
Others say that the president must “send a message,” as though that were a general war license, or complain that President Obama did more, as though his eight years of abusing presidential power ought to be considered the proper precedent. And some cite the long-standing Authorization for Use of Military Force passed in response to 9/11, as though that were a warrant to make war on any country with a Muslim resident — and, in the case of Syria, to fight in service of the Islamic State and sundry jihadists.
One of the things that are supposed to distinguish conservatives from progressives — and once did — is an abiding respect for, even a cherishing of, process. Woodrow Wilson and his ilk despised the Constitution, just as our would-be political-speech police despise it today, because it stands in the way of what they believe to be the right thing. And no doubt it sometimes does stand in the way of the right thing — the point of the Constitution is to create a political order with a particular character, not to ensure that we get our preferred outcome in every federal matter. To see conservatives adopt the outcome-above-order attitude in a matter as important as launching a preemptive war in Syria is dispiriting.
Congressional Republicans have two choices: One, they can censure the president and insist that no further action be taken without legal authorization. Two, they can stop calling themselves “constitutional conservatives,” because those who knuckle under now are no such thing.
— Kevin D. Williamson is National Review’s roving correspondent.