Love the War Powers Act or hate it, it’s the law of the land. There are those who believe the War Powers Act is unconstitutional — such as all recent presidents — and the Obama administration has refused to say whether it believes the WPA is constitutional.
But the fact that a lot of people think a law is unconstitutional does not necessarily make it unconstitutional. (Right now, many people think Obamacare is unconstitutional, but five Supreme Court justices ruled otherwise.) If it is indeed unconstitutional, it would be good to get the Supreme Court to sort this out tout de suite. Because if it isn’t, it has been violated fairly regularly, and we may see it violated again soon.
The War Powers Act doesn’t allow a president to use force absent authorization from Congress unless there is a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces” — a threshold Syria simply does not meet. If Assad’s forces shoot at our ships offshore, Obama can rain hell down upon him, but absent that “national emergency,” he has to go to Congress — as President Bush did for Afghanistan and Iraq.
(From August to October 2003, President George W. Bush sent 200 Marines to Liberia without authorization from Congress, but that was in response to our ambassador’s requesting assistance to help noncombatants, including American citizens, get out of the country. Similarly, U.S. military forces helped evacuate nearly 15,000 American citizens from Lebanon during July and August 2006. Both Congress and the Supreme Court would probably easily agree that evacuating U.S. citizens from a combat zone qualifies as a national emergency.)
We have some members of Congress insisting that the law is the opposite of what it is. Representative Peter King (R., N.Y.) told BuzzFeed today, “We should not be talking about or insisting on congressional approval.” King added, “If he wants to get approval from Congress, he can, but he does not have to.”
The law sitting there on the books says he does. Either a law is in place or it isn’t. Either the president has the unilateral authority to use this military force absent an attack on the U.S., or he doesn’t.