Legislators run away from making the tough decisions. They prefer to let the president and the courts seize the reins.
Last week President Trump authorized strikes on military installations in Syria, in response to its use of chemical weapons. I think this is a good thing. Chemical weapons have rightly been outlawed around the world by international agreement, and the community of nations committed to their prohibition has an interest in making sure that those who would violate these norms are punished.
But I’m also a stickler for the rules, and while I know it may be a bit gauche to ask this, I nevertheless must inquire: What gives the president the right to launch such an attack, absent congressional authorization?
Steve Vladeck, a law professor at the University of Texas, offered on Twitter a good explanation of the legal grounds. His series of tweets is worth reposting in part:
As the government has already implicitly conceded, no statute authorized these strikes. . . . A lot of commentators have pointed instead to the War Powers Resolution [WPR] of 1973, a framework statute Congress enacted during Vietnam in an attempt to rein in unilateral presidential warmaking. But the WPR itself specifies that it can’t be read that way — as authorizing force . . . So the question reduces to whether the President can rely on his unilateral authority under Article II of the U.S. Constitution. There’s general consensus that Article II authorizes the President to use force in “self defense.” . . . Wherever the line is between offense and defense, it’s hard to see how strikes like last night’s are on the “defense” side, given lack of imminent threat to the U.S. Instead, they’re defended under a broader theory — that Article II “self defense” includes “national interests.” It should go without saying that protecting “national interests” is far broader than “self defense.”
Vladeck concludes that the strikes in Syria are probably not legal, based upon Article II and the WPR. I’m not a lawyer, but that seems correct to me.
There is a bigger point at stake, too. Put aside the legalities and consider the spirit of the Constitution — whose manifest purpose is to enshrine self-government in the United States of America. From that perspective, the Syria strikes — and more generally the gradual accumulation of presidential power not just to execute but to declare war — are not consistent with the republican foundations of our government.
The Framers were very careful in how they organized the war-making power, as is illustrated by the various mechanisms employed. The president, for instance, is the sole commander in chief, meaning that he has discretion in how any given conduct is carried out. This was in keeping with the Framers’ decision to have a unitary executive — too many cooks spoil the broth. But the power to negotiate peace is held by both the executive and the legislative. The president negotiates treaties, but they must be approved by two-thirds of the Senate. Again, this was in keeping with their experiences during the 1780s, when foreign ministers had broad discretion to negotiate treaties, which often worked against the interests of some of the states.
And what about the power to declare war? It belongs to Congress alone. It may be hard for us to immediately appreciate in 2018 why the Framers did this, so a little historical perspective is useful. The history of European civilization up to that point was more or less the history of unelected monarchs — “anointed” by God Almighty — waging war for various reasons, many of which had nothing to do with the interests of their subjects, but rather their own vanity, avarice, ambition, etc. And who paid the price for these violent expeditions? Why, the people, of course. They paid the taxes to fund these ventures, and worst of all they suffered the gruesome depredations whenever the war happened to come into their areas.
By the Framers’ reckoning, the best way to make sure that the people do not suffer from an unnecessary war was to grant their agents in government exclusive say over when and whether a war should occur.
The Framers wanted none of this for the United States, an agenda that we can partially infer from the Bill of Rights. The Second Amendment guarantees the right of the people to keep arms, so they can serve in militias, which were citizen-staffed alternatives to the kind of standing armies bought and paid for by a government. The Third Amendment prevents the government from quartering soldiers in private residences, which basically means that the government has to pay for the food and lodging of its own soldiers.
And above all, the Constitution vests the power to declare war solely in the Congress because Congress is supposed to be, in our constitutional schema, the representative of the people. By the Framers’ reckoning, the best way to make sure that the people do not suffer from an unnecessary war was to grant their agents in government exclusive say over when and whether a war should occur.
Obviously, times have changed. The United States has not formally declared war since 1941, and it would make little sense for a formal declaration of war against the Assad regime. But return to a point that Vladeck made. Putting aside the notion of an immediate threat to the United States, the justification for an executive-approved strike in Syria would be the president’s Article II authority to determine that it was in the “national interest.” Vladeck is skeptical of this justification, and rightfully so. For even though times no longer require former declarations of war by Congress, surely the implication of the Constitution is that it is the domain of the legislature to decide when the use of military force is in the national interest. Yes, grant the president an exception for emergencies, but otherwise the power must remain housed in Congress.
Of course, the real problem is that Congress has no interest anymore in exercising such authority — just as it has sloughed off so many other powers and allowed the executive and the judiciary to take them up in their stead. Congress could take concrete steps to reacquire this authority — perhaps by putting together a broader resolution on 2001’s Authorization of Military Force (AUMF), giving the president guidelines on when and how he may launch attacks of the sort made against Syria last week. But it would be foolhardy to expect Congress to take any such steps. As Republican strategist Even Siegfried tweeted Saturday, our Congress “is rapidly becoming the comments section.”
Put bluntly, the Syria incursion last week was another sorry illustration of how denuded the United States Congress has become — and how, by extension, the notion of “self-government” has eroded dramatically in our time.