According to a report in the Wall Street Journal, Pres. Obama has authorized “using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups.”

This unilateral decision by the President to engage the United States in war is wildly unconstitutional.

Here’s what’s important to understand in this situation:

  1. What the powers of the Executive branch are when it comes to war
  2. What qualifies as war

THE PRESIDENT AND WAGING WAR

In the Constitution, the Founders intentionally prohibited the Executive branch from having the power to unilaterally determine whether or not the country would engage in war. Few were more adamant about this than James Madison, the “Father of the Constitution,” who wrote:

“The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.”

Thus, Congress has the power to determine if the country will wage offensive war and against whom.  Once that decision is made by the Congress, the President is in charge of waging that war.

Madison emphasized this point again:

…The executive has no right, in any case to decide the question, whether there is or is not cause for declaring war.

In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.

The power in question is delegated to Congress in Article I, Section 8, Clause 11 of the Constitution:

[Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

As I wrote in an early-2007 article, Article II, Section 2 of the Constitution, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the founders meant by this clause was once war was declared, it would then be the responsibility of the President, as the commander-in-chief, to direct the war.

shutterstock_204257752 constitution 800

Alexander Hamilton supported this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.”

Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

Thus, under the Constitution, the President, acting without a Congressional declaration of war, is authorized only to repel invasion and sudden attacks. Pre-emptive strikes, “humanitarian missions,” picking sides in another country’s civil war, and other undeclared military expeditions are not powers delegated to the executive branch in the Constitution, and are, therefore, unlawful.

As an aside, it’s also important to note that no federal branch has the constitutional authority to transfer powers delegated to it to another branch.  So, for example, if Congress would pass a resolution giving the President the power to make the final decision on whether or not the country will go to war, that would be a transfer of delegated power, and unconstitutional as well.

There simply is no debate. Congress, not the President, decides if the country will go to war.

IS IT A “WAR?”

Confronted with the Constitutional requirement that Congress is the federal branch that determines when the country goes to war, supporters of unilateral executive power will often take one of two paths to avoid following the Constitutional mandate that Congress declare the war before the Executive can take action.

1. Refer to the action as defensive.

This is the classic argument that “proves too much.” As James Madison pointed out, a constitutional argument is “triable by its consequences.” Here, the consequences would be essentially unlimited executive war power, since almost any significant activity can be linked to “national security” or a need to “defend American interests.” Because it is incontrovertible that unlimited executive war power is not what the Founders’ Constitution granted, the argument fails.

The argument is also a scary one, because historically “national security” often has been used to excuse the suspension of individual rights.

In short, actions only qualify as “defensive” under the constitution if they are in response to a direct attack or an imminent threat of attack. While not conclusive, there is Founding-era evidence to support the constitutionality of a defensive military response to protect U.S. personnel abroad as well. It’s also instructive to note that even this broader understanding is limited to “U.S. personnel abroad” and not merely “U.S. interests.”

2. Refer to the action as something other than “war.”

Under the Constitution, a war is a war whether you call it a war or something else.

Constitutional scholar, Rob Natelson, wrote about the legal meaning of the word “war”” in March, 2011:

Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.”  (Barlow, 1772-73).  I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.” [emphasis added]

All U.S. military actions qualify as “violence under sovereign command.” And such airstrikes in Syria, whether for strategic, political, or humanitarian purposes, are “over opposition.”

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WHAT NEXT?

Constitutionally, this plan for airstrikes in Syria is an act of war. This is war waged on the unilateral decision of the President, and not following a declaration of war from Congress as the Constitution requires.

While on many constitutional questions, there was debate and significant difference, on war, the Founders were nearly unanimous in their opposition to such actions. From Hamilton to Madison and Jefferson, they rejected this kind of power in the hands of one person.

But it should be clear that Constitutional limitations don’t enforce themselves. And politicians with something to gain by violating them will do so, as we can see, often with impunity.

What can be done?

In Federalist #46, James Madison said that unconstitutional or merely unpopular federal acts would create an environment where “plans of resistance would be concerted.”

Unfortunately, though, while many commentators are rightly calling the President’s actions what they are – unconstitutional – no “plans of resistance” are making the rounds.

So here’s one – resistance by refusing to participate. Contact your state legislators and urge them to introduce, support, and pass the Defend the Guard Act. While it won’t stop things on its own, it’ll be a powerful first step of resistance against this unconstitutional war in Syria.

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