The Constitutionality of War: Who Really has the Authority to Send American Troops into Harm’s Way?

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Syrian Civil War
The ravages of the war in Syria

Following President Trump’s decision to lob missiles into yet another sovereign nation that hasn’t attacked us, talk has turned again to the legality of a President unilaterally deciding to use American military might around the world. In a not so stunning role reversal from similar strikes during the Obama administration, many Democrats (and even some Republicans) have come out in opposition to the President’s actions in Syria, while many more Republicans (along with the occasional Democrat) are supportive of his response to the unverifiable reports of Bashir Assad’s use of chemical weapons against his own people. Both supporters, as well as those in opposition to American involvement in the 7 year old Syrian Civil War, have cited the War Powers Resolution of 1973 as justification for their views on the legality of the President’s actions.

Republican Congressman Justin Amash of Michigan, one of the most vocal critics of the President’s decision to strike Syria, argues that the War Powers Resolution “does not confer any new authority on the president to take offensive military action without congressional approval.” He goes on to state that the resolution’s true purpose is to provide checks when the president “enters our Armed Forces into hostilities for constitutionally permissible reasons.” He goes on to state that those who believe the War Powers Resolution grants a President a 60-90 day window to engage in acts of war without Congressional approval are misreading the Resolution, arguing instead that the window only applies to situations implicating “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

For his part, President Trump has in the past argued that his decision to strike Syria (as he did in 2017 as well) is consistent with the War Powers Resolution by the mere act of following the directive of notifying Congress within the 48 hour window that is laid out in the resolution. The administration also holds the view that since each of the President’s forays into Syria were “one-shot affairs” so to speak, the 60-90 day timetable for seeking Congressional approval does not apply, therefore allowing the President to act in whatever manner he deems to be in the national interest.

However, despite each side citing it, the War Powers Resolution has nothing to do with the legality or legitimacy of the President’s actions in Syria.

Article I, Section 8, Clause 11 of the U.S. Constitution grants Congress, and Congress alone, the power to declare war…and make no mistake, lobbing roughly 100 missiles into a sovereign nation that has in no way attacked you is the very definition of an “act of war”. Some, including Defense Secretary James Mattis, continue to insist that the president has the authority under Article II, Section 2 of the Constitution to use military force overseas to defend important U.S. national interests. However, no objective reading of the phrase “The President shall be Commander in Chief of the Army and Navy of the United States” (frequently cited as what grants the president the authority to use military force overseas without Congressional authorization) could be construed as actually authorizing the Executive Branch to ability to unilaterally wage war against another nation.

We, the people of the United States have, for far to long sat silently and allowed the Executive Branch of the Federal Government to usurp more and more power specifically granted to the Legislative Branch. Under both Republican and Democratic rule, from Korea to Vietnam, and on up through the conflicts of the present day, nowhere has this been more evident than in the initiation of conflict across the globe. And at no time in our history has this practice been more dangerous to the average American than it is right now. It is long past time that we, along with our representatives in Congress, demand this power be returned to its Constitutionally mandated home in the Legislature.

It is on each of us to either demand our representatives in Congress rightly reclaim the power given to them by the Constitution to levy war, or replace them with representatives who will. The future of this nation, along with the lives of potentially millions of our fellow Americans, very well may depend on it.

You can read more from Matthew McGowan on Think Liberty here.

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