Skip to main content

See also:

Obama struggles with constitutional limits on his power

President Obama, anxious to attack Syria to bolster his sagging popularity, is struggling with the constitutional limits of his power. While some scholars may argue about whether the president has the power to attack another nation if there is no eminent threat, this president seems determined to demonstrate that he is tough on tyrants.

Months ago, Obama warned Syria’s leaders not to cross a “red line” and use weapons of mass destruction. The evidence of a poison gas attack by the Syrian government is less conclusive than the intelligence community’s data on the existence of weapons of mass destruction in Iraq prior to commencing war with that nation. Yet, this president is seeking to protect his reputation and is ready to launch an attack on Syria. There is small obstacle though: the United States Constitution.

Article II, Section 2, of the Constitution says the president shall be commander-in-chief of the armed forces “when called into the actual service of the United States.” The president has the power to conduct a war, but he is required first to have a congressional declaration of war in hand, as stated in Article I, Section 8, Clause 11. While we have not always seen declarations of war in recent conflicts, usually there have been clear authorizations by Congress giving the president the power to act. An early notable exception was President Harry Truman’s “police action” in Korea.

There was congressional authorization for the first Gulf War, as there was for later military action in Iraq. One could argue that there should have been a declaration of war in each case, but at least there was some sort of consent given by Congress. Of course, this consent was followed by appropriations to pay for our actions in these theaters, further demonstrating congressional support.

In the U.S. action against Libya, there was no congressional consent requested by the Obama Administration, yet military action commenced and funding followed. Now, the administration is seeking congressional support for a military strike in Syria. But the president’s statements on this subject are troubling. He says he doesn’t believe he needs to have the support of Congress, but that it is convenient for him to request it. Being the self-absorbed man that he is, he obviously does not question his infallibility, nor see the need to follow the Constitution.

The president said, “Yet, 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. We should have this debate, because the issues are too big for business as usual. “

So, for President Obama, the debate is a formality. He knows he is right and he doesn’t really need the consent of Congress to act. Many constitutional scholars disagree.

Yahoo News has an interesting take on the constitutional questions with which the president is struggling:

Just a few days ago, before Obama’s decision was known, legal scholars from both the right and the left were in agreement that waging war over Syria – no matter how briefly – without congressional approval would bend the Constitution beyond recognition.

Jack Goldsmith, a Harvard law professor who served as a Bush administration lawyer during the run-up to the 2003 Iraq war, wrote in the legal blog Lawfare, “The planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.” And liberal constitutional scholar Garrett Epps, writing for the Atlantic , concluded, “It’s pretty clear that an American attack would violate the Constitution.”

The authors of our Constitution were well aware that the president should have the power to repel an invasion of the United States or to take action quickly to protect the interests of the United States. But this is not the case in Syria. What is the national interest that is being served by attacking Syria? Is this the first time a dictator has decided to exterminate some of his people? Is the United States obligated to come to the rescue of every incident of violence against women and children around the world? That sort of obligation could keep the U.S. military busy on a daily basis.

The argument will be made that a weapon of mass destruction was employed with massive casualties. Where was the United States when Tutsi and Hutu blood ran red in Rwanda in 1994? About 800,000 died there. Someone determined it was not in our interests to act.

What is the strategy in Syria? Just to make a point about not crossing a “red line”? Did the president discuss this with his military brass and work out a game plan before he talked about the “red line”? So will we now pay millions of dollars to launch an attack because Obama spoke without carefully considering his words and their consequences?

The good news—if you can call it that—is that Obama has decided to seek congressional consent for military action against Syrian dictator Bashar al-Assad. This sets a welcome precedent for future presidents from a chief executive who has expanded the imperial presidency in a way that would make FDR, Harry Truman or Richard Nixon blush. Although Obama may not see the need for limitations to presidential power, many of his countrymen do. Furthermore, the Constitution demands these limits.