John J. Bastiat / April 18, 2018

Were Missile Strikes in Syria ‘Unconstitutional’?

Do we really need a lecture from the Left on what passes constitutional muster?

The latest bombshell in the leftist pile-on against President Donald Trump is the claim that his missile strikes on Syrian chemical weapons production and storage facilities were “unconstitutional.” This laugh-out-loud irony sources from the same treason-lobby that despises the U.S. Constitution — except when it can be used as a weapon to destroy the enemies of progressivism. Setting aside the president’s moral right to ignore a claim steeped in hypocrisy from a group that routinely elephant-stomps over the document to which it now self-righteously cleaves, the merits of the Left’s baseless claim face more than two centuries’ worth of rebuttals.

First, let’s make sure we address the strongest argument posed so we’re not knocking down a strawman. The most compelling line of reasoning for the Trump-acted-unconstitutionally crowd goes something like this: Either the president can never authorize military force without getting a declaration of war from Congress, or if he can, he must at least have congressional approval for the same. As a fallback position, any such authorization must at least be in direct self-defense of the U.S. or its forces, or else at a bare minimum critical U.S. national interests must be at stake.

At the outset we note some weaker proponents of the president’s authority as commander-in-chief (CINC) point to Congress’s authorization for the same under the Authorization for Use of Military Force (AUMF) public law (2001), passed by Congress in the immediate wake of 9/11. Failing this, they further point to authority under the War Powers Resolution (1973), passed as an ostensible check on the president’s power during Vietnam. But reliance on these authorizations is misplaced for a host of reasons, not least of which is the fact AUMF was directed solely to actions against al-Qaida and its affiliates or supporting states, and the War Powers Resolution has not been recognized by any president as a constitutionally permissible limitation upon CINC authority. It should also be noted that no federal court has upheld the resolution, and even Congress itself has refused to assert it. Moreover, the resolution explicitly states it cannot be read as authorization for the use of force. The simpler truth is that the president simply doesn’t need Congress’s permission to defend the nation.

That’s right: The president has inherent powers as commander-in-chief of America’s military. We know; this just in. But from where, specifically, do these derive? How about from the Constitution, for starters? Article II, Section 2, states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” So far, so good. But from where do his independent powers to control the military derive? From the original conceptions of the Founders, as validated through their actions — as well as through the consistent actions of their successors down through the generations.

For example, in his “Pacificus” essays, Founder and Federalist Papers co-author Alexander Hamilton noted that the powers of war and peace are “a concurrent authority” shared by the executive and Congress, which he expounded in Federalist No. 74. Founder James Madison further noted that the constitutional language authorizing Congress to “declare war” was crafted in lieu of the originally drafted language giving Congress the power to “make war,” specifically so the CINC could respond to a “sudden attack.” The discarded, latter term encompassed all use of military force and Congress did not want to so limit CINC authority.

Madison further noted, however, strong opposition to ceding power to the executive to “commence” war — the idea being that the president could act immediately for defensive purposes, but would require deliberative, congressional approval to engage an enemy force offensively. Admittedly, the lines between “offensive” and “defensive” use of military force blur in the landscape of today’s threats and battle spheres, but the general idea in the Founders’ day was that the CINC could act immediately, whenever-wherever, to protect against imminent threats to national security, but would need Congress to authorize other uses of force.

So what actions of the Founders and their successors validate this notion of the CINC’s authority? George Washington’s actions in the Northwest Indian War (1793) come to mind, as do Thomas Jefferson’s against the Barbary pirates (1801) and James Monroe’s in Amelia Island (off the coast of modern-day Florida, 1817). We probably shouldn’t leave out Abraham Lincoln’s actions in the War Between the States (1861), or Woodrow Wilson’s in Mexico (1916) or Russia (1919). Harry Truman’s actions against communists in North Korea (1950) and John F. Kennedy’s nuclear brinksmanship in the Cuban Missile Crisis (1962) should not be forgotten for that matter, either.

In fact, every other president’s military actions since the Cuban Missile Crisis — notwithstanding sporadic, after-the-fact congressional stamps of approval validating such actions — have only reinforced this “CINC Doctrine,” whether under a Republican or Democrat president.

More proof? How about the fact that although the U.S. has used military force well over 100 times abroad, we — as a nation — have formally declared war only five times? These were the War of 1812; the Mexican-American War; the Spanish-American War; World War I and World War II. The remaining uses of force — from Washington to Trump — have been under the authority of the president, with or without congressional imprimatur.

The argument further goes, if the president indeed has these CINC powers, then how is Congress supposed to rein in a rogue president who is off the rails? Answer: The same way it did in America’s most unpopular modern-day conflict, Vietnam: By cutting funding. Both houses of Congress voted to cut funding for the Vietnam effort, overriding a presidential veto in the process. The move was further fueled by an overwhelming desire to terminate bombing in Cambodia, a use of U.S. military force enjoying virtually no support from the American public. Such congressional actions take courage, of course, but are nonetheless available as fail-safes to ensure the ultimate power over the military remains in the hands of America’s citizens.

From a commonsense standpoint, were the president required to wait for Congress to weigh in on every military action, U.S. national security could be threatened by the lack of expediency in the face of imminent threats. Such a vulnerability could be readily exploited by America’s adversaries to gain military and political advantage over the U.S. And ceding all CINC authority to Congress by accepting congressional approval to “legitimize” inherent Article II executive powers undermines fundamental constitutional separation-of-powers principles.

Circling back to the question of whether President Trump’s actions against Syria were constitutional, Syria used chemical weapons on its own people, has used them before and has indicated it would not hesitate to use them again. Now, whether this fact — considered in light of other threat factors in that volatile region — constitutes an imminent threat to U.S. security interests is difficult to say with any certainty. But one thing is certain: The president, as commander-in-chief, has the constitutional authority to make that assessment — and act on it, if need be — without blessing from Congress.

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