Was Syria attack legal? Framers would say no
From a moral standpoint it’s hard to argue with the U.S. missile strikes on Syria. But did the Trump administration have legal authority under the Constitution to attack without congressional authorization? If the answer is yes, what legal limits — if any — apply against other countries or in other situations? It will be up to lawmakers to answer these questions, and it would be a dangerous mistake for them to punt.
The circumstances were very similar in 2013 to what happened last week: There was evidence that Syrian President Bashar Assad had ordered a deadly chemical attack against Syrian civilians. As the Obama administration prepared to respond, more than 100 members of Congress, mainly Republicans, signed a letter explaining that the president could not act alone.
They wrote that the Constitution does not let the president unilaterally order military action unless the U.S. or Americans face a direct threat of attack. That is an accurate description of constitutional law. Article I of the Constitution assigns Congress the power to declare war. Records from the Constitutional Convention of 1787 indicate that the Framers believed the president would have authority to act unilaterally only in an emergency, to repel a sudden attack. At the time, Donald Trump agreed, tweeting that “The President must get Congressional approval before attacking Syria — big mistake if he does not!”
President Obama agreed to seek congressional approval, but it never came, and he never acted. In 2017, a new president did not seek or wait for congressional authorization. But Trump and members of Congress were right in 2013: Unless the U.S. is facing a sudden or imminent attack, the president does not have legal authority to order the use of military force. “The President needs congressional authorization for military action as required by the Constitution and I call on him to come to Congress for a proper debate,” Kentucky Sen. Rand Paul said on Facebook.
Paul’s constitutional analysis is spot on, but his approach is unnecessarily passive. Lawmakers need not wait for Trump to come calling. They ought to make clear that Trump had no authority to act on his own. They can then decide whether they believe military action is warranted. This is not an abstract consideration or an academic point of contention. Are we OK with Trump unilaterally ordering a strike against North Korea, or any other country, at his unfettered discretion?
The Constitution was not designed to leave these questions up to the sole judgment of the president. Congress has all the constitutional tools needed to impose meaningful limits on executive power. The question is whether Congress will play its constitutionally assigned role, or once again hand its authority to a president.
Chris Edelson is an assistant professor of government at American University and director of AU’s Politics, Policy, and Law Scholars Program. His latest book is Power Without Constraint: The Post 9/11 Presidency and National Security.