from The Water's Edge

Syria Revives the War Powers Debate

September 02, 2013

The United States Constitution (Courtesy of the National Archives)
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President Obama’s determination that the United States should take military action to punish the Syrian government for using chemical weapons has revived the perennial debate over how the Constitution allocates the war power between Congress and the White House.  President Obama says he has “the authority to carry out this military action without specific congressional authorization,” but nonetheless is asking Congress to vote anyway. Some commentators have hailed this decision; others have criticized it for undermining presidential authority.

The question at the core of the debate is, when can presidents unilaterally take the country from peace to war? No constitutional question arises when Congress authorizes the president to use force. Presidential authority is at its zenith when backed by explicit congressional consent. And no one seriously disputes the claim that presidents can order U.S. troops to fight when the country is attacked. The Constitution is not a suicide pact. When neither of these conditions prevails, however, the arguing begins. And there has been a lot of arguing over the years.

When President Obama launched Operation Odyssey Dawn back in 2011, I examined five questions that frequently get asked whenever the subject of unilateral presidential decisions to use force comes up. If you want to brush up on the topic, here are links to the posts with the summary answers appended:

  1. Did the Framers want the president to have an independent authority to initiate hostilities against another country? Short answer: no.  Just ask Pierce Butler. He offered a motion at the Constitutional Convention to give the president that power explicitly. No other delegate seconded his idea.

  1. What do proponents of unilateral presidential authority to initiate hostilities base their claim on? Short answer: either that the Constitution gives presidents that authority, or more commonly, that presidents gained the power over time through unchallenged practice.

  1. Have presidents always taken an expansive view of their constitutional authority to initiate the use of force? Short answer: no. Harry Truman and his successors have made more of being commander in chief than their predecessors did.

  1. Can the United Nations, another international organization, or a treaty of alliance authorize the president to initiate hostilities that he otherwise would not have the constitutional authority to start? Short answer: no. The UN Charter and the treaties of alliance that the United States has signed and ratified all have clauses that stipulate that the signatories will carry out the obligations they are assuming in accordance with their respective constitutional processes.

  1. Why don’t the courts settle the question of what presidents can do once and for all? Short answer: the courts believe this issue is best left to the two political branches to sort out.

While Syria provides more grist for these debates, it is not likely to settle any of them.  So you may want to bookmark this post for future reference. The odds are good that the war powers debate will resurface in the future.