The President, the War Powers, and Syria

It is not exactly clear what legal standing might exist for US military action not authorized by the UN Security Council. The 1945 UN charter prohibits the threat or use of force against the territorial integrity or political independence of any state, and stipulates that only the UN Security Council has the power to determine whether there has been an actual threat to peace and what should be done about it. In the case of Syria, permanent members China and Russia would veto any such call to action.

Obama drew a red line against Syria using chemical weapons in 2013, but when the moment came to redeem that peldge, he pulled back. "I'm very proud of this moment," he told Jeffrey Goldberg in The Atlantic. "The fact that I was able to pull back from the immediate pressures and think through in my own mind what was in America's interest, not only with respect to Syria but also with respect to our democracy, was as tough a decision as I've made — and I believe ultimately it was the right decision to make."

On Saturday 31 August 2013, President Barack Obama announced that he would defer military action against Syria, pending approval of the US Congress. He said "... while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective." Candidate Obama told The Boston Globe in late 2007 “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,” He added that the president can only act unilaterally in “instances of self-defense.... It is always preferable to have the informed consent of Congress prior to any military action...”

Article I, Section 8 of the United States Constitution says "The Congress shall have the power … To declare war…". Some would argue that this plainly precludes essentially any use of force by the executive branch short of an immediate response to a direct attack, such as a Cuban amphibious assault on Florida. This was probably close to the actual understanding of the Founders at the time the Constitution was adopted.

When confronted with the prospect of what he termed "an offensive expedition against the refractory part of the Creek nation", President George Washington wrote on 28 August, 1793: "The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure."

Alexander Hamilton, in The Federalist, 69, 1788, wrote that "The president will have only the occasional command of such part of the militia of the nation, as by legislative provision may be called into the actual service of the union. The king of Great Britain, and the governor of New York, have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the president would be inferior to that of either the monarch, or the governor. ... The President is to be commander-in-chief of the army and navy of the United States. . . . It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy; while that of the British king extends to the declaring of war and the raising and regulating of fleets and armies, -- all of which by the Constitution under consideration, would appertain to the legislature."

The United States has formally declared war against foreign nations 11 times in its history in 5 separate wars. There were seven other extended military engagements that might be considered undeclared wars which received congressional authorization in some form short of a formal declaration of war. These include the Undeclared Naval War with France from 1798 to 1800; the First Barbary War from 1801 to 1805; the Second Barbary War of 1815; the Vietnam War from 1964 to 1973; the Persian Gulf War of 1991; global actions against foreign terrorists after the September 11, 2001, attacks on the United States; and the war with Iraq in 2003. Other major conflicts, such as the Civil War, the Korean War or the various operations against Serbia in the 1990s, did not have such explicit authorization. There are over two hundred instances in which the United States has used its Armed Forces abroad in situations of military conflict or potential conflict or for other than normal peacetime purposes.

Such uses of force without Legislative authorization would have been clearly unconstitutional in some other countries, such as Mexico. Under the Mexican Constitution: "Article 73. The Congress has the power: ... XII. To declare war, in the light of information submitted by the Executive." This is the case in the United States. But the Mexican Constitution goes further, requiring Senate authorization to deploy forces outside the country: "Article 76. The exclusive powers of the Senate are ..... I. To approve the treaties and diplomatic conventions made by the President of the Republic with foreign powers. ..... III. To authorize him also to permit the departure of national troops beyond the borders of the country,"

Constitutional interpretation, regardless of the interpretive method used, will inevitably contain elements of subjectivity. The interpretive method of "original intent" has been portrayed by members of the judiciary as objective and even superior to alternative methods of constitutional interpretation. Politicians have presented the employment of the interpretive method as a means of moving the country in the “right” direction. Others argue that even if sufficient clarity of the farmer’s intent could be divined by utilizing some appropriate methodology, the normative meaning determined would still be limited in its applicability to modern disputes. This issues is not peculiar to the war powers, but extends to almost every facet of American politics, from religion in schools to gun safety.

Justice Antonin Scalia asserted that the purpose of constitutional guarantees is precisely to prevent the law from reflecting certain changes in original values that the society adopting the constitution thought fundamentally undesirable. He also argued that the constitution has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. Chief Justice William Rehnquist, an originalist, also viewed the constitutional meaning as being fixed and unchanging.

Sen. Rand Paul said in 2012 "I consider the abandonment of the founding principles of enumerated powers, limited government, and separation of powers to be the fundamental cause of the vast ills facing our nation today. The expansion of the federal government beyond its constitutionally granted powers has had many unintended and detrimental consequences. A careful reading of the Constitution, Bill of Rights, Declaration of Independence, and the Federalist Papers demonstrates just how far we have departed from the original intent of our Constitution."

The US Congress attempted to assert a greater role in the decision “to declare war” with the War Powers Resolution Act of 1973. This bill allowed the president to use military force for up to sixty days without reference to Congress, with an additional thirty days to permit disengagement. That is to say, the view of the Congress was that small operations that could be conducted with standing forces and existing appropriations did not require involvement. This is already a very far cry from Alexander Hamilton's time, in which "The president will have only the occasional command of such part of the militia of the nation, as by legislative provision may be called into the actual service of the union."

Alexis de Tocqueville wrote, “[T]here is hardly a political question in the United States which does not sooner or later turn into a judicial one.” In the 1980s, some members of Congress filed court cases charging President Reagan with violating the War Powers Act when he sent military advisers to El Salvador; the invasion of Grenada, and military actions in Nicaragua and the Person Gulf. Similarly, members of Congress brought suit against President George H. W. Bush in 1990 for sending troops to the Persian Gulf. Another suit was filed by twenty-five members of the House of Representatives against President Bill Clinton's military action in Yugoslavia without congressional authorization. These suits were all decided against the plaintiffs.

When a decision is made by a higher court, the lower courts must follow it. Once a case is decided, it establishes a precedent, or a judicial decision that should be followed when a similar case comes to court. The doctrine of stare decisis ("Let the decision stand") helps to promote predictability and order in the legal system. Stare decisis ensures that doctrinal changes are likely to be gradual rather than abrupt and that well-entrenched decisions are unlikely to be overturned.

Part of the problem seems to be the scope of what Washington termed an "offensive expedition of importance". When he wrote, a punitive expedition against "refractory" native Americans fit this definition. Today, when the United States has the world's largest standing Army, and a Navy the equal of all other navies on the planet combined, it is a different matter. When the Constitution was written, the United States had a population of somewhat over 3 million, strung out in a narrow smear of civilization along the Eastern seaboard. Today the United States, with a population grown a hundred-fold to over 300 million, much like Shakespeare's Caesar, "... doth bestride the narrow world Like a Colossus".

Known as the "Commodore," when Cornelius Vanderbilt died in 1877, he left an estate valued at $100 million. Vanderbilt's astonishing fortune ranked him as the richest American in his lifetime, and his wealth had seemed to grow right along with the rapidly expanding new nation. The Commodore actually lived on one of his ships for most of his early life. Vanderbilt always paid for everything with cash. Vanderbilt famously said "It is not according to my mode of doing things, to bring a suit against a man that I have the power in my own hands to punish." To his steamship rivals Charles Morgan and Cornelius Garrison: “Gentlemen: You have undertaken to cheat me. I won’t sue, for the law is too slow. I’ll ruin you.” Or more to the point, “What do I care about the law? Ain’t I got the power?”