Does the Constitution Give the President the Legal Authority to Attack Syria?

Posted By Levi

September 11th, 2013 8:00pm

us constitutionPresident Obama has asked Congress to approve a military strike on Syria. However, it appears that Congress will not give its approval. Nevertheless, Administration officials have insisted that the president have the legal right to attack Syria even if Congress refused to give its approval.

Does the Constitution give the president the legal authority to make war on another country? No, it doesn’t.

Yet many Americans hold the view that the President can take the country to war without approval from Congress. I simply cannot understand that view. The Constitution could not be clearer on this point.

The power to declare war is found in Article I, Section 8 of the Constitution:

[Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

The language of the Constitution is absolutely clear – only Congress can declare war, not the president.

It is true that the Constitution also says the President is “Commander-in-Chief” of the army and navy of the United States.  Some take this to mean that the President can make war on his own.

Here is Article II, Section 2:

The president shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States…(emphasis mine.)

Note the president becomes Commander and Chief of the armed forces only when called into action i.e. war has actually been declared. In other words, once the war starts, it is the president’s responsibility to conduct the war.

As “Commander-in-Chief” the president has the duty to protect and defend the United States. In this capacity the president does have the power to use military force without the approval of Congress. But he can do so only if the country faces an actual or imminent threat of invasion.

In other words, the president can unilaterally take the country to war only in self-defense. In all other situations he needs Congressional approval for the use of military force.

This was President Obama’s own understanding of the Constitution when he was campaigning for the presidency. When asked by the Boston Globe whether the president can order an attack on another country without the approval of Congress, Candidate Obama said such action would indeed be a violation of the Constitution:

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Syria did not attack the United States. Therefore, an attack on that country cannot be justified as self-defense. Neither does the use of chemical weapons in Syria pose any kind of “imminent” threat to the United States.

War and the Founding Fathers.
The Founding Fathers regarded war as one most serious and dangerous affairs that the country could ever be engaged in. President John Adams warned us not to go abroad seeking monsters to destroy. President George Washington in his Farewell Address warned future presidents not to become entangled in foreign affairs.

For these reasons, the Founders did not want to put this awesome power of war-making in the hands of one man. Instead they gave it to the people through their representatives in Congress. James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to Thomas Jefferson:

The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

John Jay explained in Federalist 4 that Presidents will start wars that are unnecessary and unjust i.e., for their own self-serving benefit but the people are much less likely to do so. For this reason, the Constitution did not give the president the power to make war:

“It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”

Sadly, throughout our history, this idea that the president can start wars has led to the involvement of the United States in numerous wars, many of which were unnecessary and wrong. Let’s not add another misadventure to the list. Yes, the situation in Syria is heartbreaking. President Assad is a ruthless tyrant but military strikes against Syria might just make the situation worse. 

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