The Patriot Post® · Whither Congress?

By Dr. Caleb Verbois


The news that President Donald Trump authorized the U.S. military to strike a Syrian chemical manufacturing facility is hardly surprising. Even without the potential incentive to distract the news media from Robert Mueller’s investigation and the next phase of James Comey’s “Buy My Book!” tour, almost any president would want to strike at Bashar al-Assad after his repeated uses of chemical weapons on his own people — especially his country’s children.

And yet, there is something deeply troubling, or something that should be troubling, about the president’s willingness to start a war on his own authority. Make no mistake, launching missiles at a dictator who is backed by Russia is the equivalent of starting a war, and it quite obviously raises the stakes of our ongoing confrontation with Russia.

Why is this problematic? Most obviously, because our increased military activity in Syria makes it more likely that our armed forces will end up in a shooting conflict with Russian forces, which could quickly escalate into a much larger war. But the deeper problem is one of constitutional justification. The Constitution is quite clear that only Congress has the authority to declare war. The Founders deliberately used the phrase “declare war” instead of “make war” for two reasons. First, they did not want Congress to think that it was in charge of actually directing a war effort. No one wants generals taking orders from a committee. Second, they wanted the president to be able to respond to sudden invasions or rebellions — to act in national self-defense.

But they relied on the requirement that Congress had to first initiate war by “declaring” it to rein in the natural aggressiveness of the presidency. Wars are costly, in both blood and treasure, and they have a nasty way of escalating from small wars to big ones (see Vietnam, Iraq, Afghanistan, Libya, etc.)    Despite this, both Trump and his immediate predecessor, Barack Obama, have initiated “small” wars without consulting Congress. Obama dodged the constitutional requirement when he began a war in Libya by relying on the fiction that it was a “military kinetic action” rather than a war and that it was authorized by NATO, as though NATO could replace the will of Congress. Arguably, partly because of the need to maintain the deception that an air bombing campaign was not a real war, Obama refused to put sufficient troops in Libya, which partially contributed to the disaster at Benghazi in 2012 when Ambassador Christopher Stevens was murdered. Similarly Trump has now launched two separate air strikes at Assad in Syria, one last year and one this weekend, in response to Assad’s atrocities.

Trump’s and Obama’s willingness to go it alone can, perhaps surprisingly, be contrasted to that of Obama’s predecessor, George W. Bush. Bush started two large-scale wars in Afghanistan and Iraq, but in both cases he went to Congress and received congressional authorization before landing troops or launching missiles. This matters not just because it holds to constitutional forms but because those constitutional forms are important for democratic governance. When a president goes to Congress to get permission to go to war, he has to show evidence that he is justified in doing so. Congress has to weigh that evidence and act. If the president lies about that evidence, he can be held accountable later. When a president skips those steps, there is no real accountability. He is not acting as a constitutional president but as a dictator.

And yet such behavior is distressingly common in recent years. Why? Because our Constitution is not self-activating. The ghost of James Madison does not rise from his grave with a sword to stop a presidential abuse of power. Instead, the Founders intended the three branches, and especially the two elected branches, to restrain each other from abuse. But if Congress is unwilling to act when the president violates his authority, there is no meaningful check on him.

So what could Congress do? Its members could debate and vote to authorize war. Alternatively, they could defund part of the military to make it harder for Trump to act on his own or they could refuse to act on another part of Trump’s agenda until he sought congressional support for a war. But in order for Congress to pursue any of these options, the members first have to recall that they serve an institution, not merely a party. They are responsible for acting in the interest of the Congress, not simply agreeing or disagreeing with Trump on partisan grounds.

So where does Congress go from here? The odds of members of Congress recognizing their own constitutional responsibilities seem slim. They seem intent on pursuing partisan differences rather than preserving institutional integrity. But our members of Congress do have options — they are not helpless bystanders.

Caleb Verbois is an assistant professor of political science at Grove City College and an affiliated scholar at the John Jay Institute. He teaches American Politics and Political Theory and specializes in American constitutional thought.