With the President threatening Syria (again), we are (again) hearing that the President does not have constitutional authority to launch attacks without Congress’ approval. Here’s Katherine Timpf at NRO (channeling Senator Bernie Sanders): Trump Does Not Have the Constitutional Authority to Strike Syria. She writes:
“President Trump has no legal authority for broadening the war in Syria,” Sanders said in a statement. “It is Congress, not the president, who determines whether our country goes to war, and Congress must not abdicate that responsibility.”
“If President Trump believes that expanding the war in Syria will bring stability to the region and protect American interests, he should come to Congress with his ideas,” he continued.
There are many things that I disagree with Senator Sanders on (such as economic policy, spending, and health care) but here, he is absolutely right. The president has absolutely no authority to take military action against Syria. The Constitution is clear about this; it’s not hard to understand.
Of course, I agree (also here). But let’s be clear that Senator Sanders and those agreeing with him are making an originalist argument. The Constitution given its original meaning is clear. I’m not sure it’s “easy” to understand — my first try at explaining it took me 95 pages in the Chicago Law Review; but I do think after examining all the evidence, it’s clear. To “declare war” in eighteenth-century terms included “declaring” by taking military action as well as by issuing a proclamation, and even relatively small armed conflicts with foreign nations were considered “war.”
In contrast, the nonoriginalist case against the President’s war-initiation power is highly uncertain. It can be made — here’s David French, also at NRO, making it:
America’s constitutional structure exists for a reason. When we launch military campaigns — especially campaigns that could lead our nation into direct conflict with a great power — it’s in our national interests that the commander in chief rally the people through their elected representatives. Military action should be an expression of national will.
But the argument the other way is strong as well. Circumstances have changed drastically since the Founding. Military action can take place much more quickly, and often needs to do so to be effective. The United States’ air power superiority makes quick strikes more practical and less likely to involve material U.S. casualties. The power disparity and our limited objectives make it less likely that full-scale war will ensue. Congress has proved unwilling to wield the war-initiation power except for major conflicts (and sometimes not even then). Presidents have used their independent power to launch airstrikes repeatedly in modern times — Clinton in Kosovo, Obama in Libya, Trump in Syria last year — with relatively muted criticism. The President’s lawyers have consistently taken the position across multiple administrations that Presidents have this power. No Supreme Court decision in modern times has even hinted at a limitation, as the Court has carefully avoided the issue.
Taking all these arguments together, there’s a strong claim that the Constitution’s meaning has evolved, or should be seen as evolving. It’s not an airtight case, but it seems at minimum hard to say that a nonoriginalist approach excludes independent presidential war-initiation power, at least with regard to low-intensity strikes with limited objectives.
So when we hear people such as Senator Sanders say the Constitution gives war-initiation power to Congress, it’s good to remember that he’s speaking as an originalist, even if he doesn’t realize it.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.