Constitutional Crisis: Syria and Congress’s War Power

“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.” – Senator Barack Obama, 2008

Five years removed from the lofty rhetoric of the 2008 presidential election, President Obama has all but turned his back on the few shreds of rational ideology he once professed. What is a gravely important issue situated at the heart of our constitutional system of government turned out to be nothing more than a façade of talking points to mask then candidate Obama’s underlying nihilism.

In the midst of more reports regarding the use of chemical weapons by the Ba’athist regime of Anwar al-Assad in Syria, the reaction by the United States is following a predictable trajectory: the Obama Administration frames the issue as a matter of “duty” on the part of the United States to intervene, seeks international approval for a strike from entities like the United Nations, NATO, or our European allies, and then executes the strike.

As of yet, President Obama has been unable to proceed beyond the first stage in this process. The notion of bombing Syria is not garnering the same support internationally as had the intervention in Libya. Furthermore, domestic opposition to a proposed strike has expanded markedly, now including some members of the president’s own party as well as a coalition spearheaded by Sen. Rand Paul to ensure that the president seeks congressional approval before attacking Syria.

Whether Assad deployed chemical weapons or not is a fundamentally irrelevant question to American interests. The decision for the United States to intervene in foreign conflict is principally a question of how the conflict affects US interests, not of particular weapons utilized by either side. To engage the President on factual questions regarding Assad’s use of chemical weapons (as many have done) is to concede the relevance of the point. And certainly, it is not the only irrational aspect of the debate from those opposing US intervention in Syria – pacifistic cries that Syria is a “sovereign nation” are also of no merit in determining US actions moving forward.

Rather, Sen. Paul correctly assessed the situation when he stated on Wednesday, “The war in Syria has no clear national security connection to the United States and victory by either side will not necessarily bring into power people friendly to the United States.” In essence, the debate over whether the United States should bomb Syria should be centered solely around whether doing so is beneficial to the interests of the United States – that is, the protection of the individual rights of its citizens and those within its jurisdiction. As of yet, no clear interest has been identified.

Unfortunately, the American people and their congressional representatives may not get to have that debate. Though there remains the chance that President Obama may yield to public pressure and stand down, his previous example in Libya demonstrates that the more likely event is that President he will launch missiles into Syria without congressional approval.

Just as with the attack on Libya before it, an attack on Syria would fly in the face of the separation of powers created by the US Constitution. This principle – the principle of dividing power between the various branches and levels of government so as to institutionally protect individual rights – has constantly proven to be rather troublesome for President Obama who has, more often than not, simply ignored it, instead employing his authority over an extensive federal bureaucracy to institute his policy agenda when doing so has been denied by Congress.* Where he cannot avoid the powers of the other two branches, he attempts to shame and censure them before the entire nation, as he did with the Supreme Court during his 2010 State of the Union Address.

And yet, few instances of autonomous executive authority are more dangerous than that of a Chief Executive with the ability to unilaterally deploy the military at his whim. The Founders properly feared the concentration of such power in the hands of a single man, and wisely tempered the president’s role as Commander in Chief by granting powers essential to the use of the military to Congress. As Alexander Hamilton wrote in The Federalist, No. 69:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. 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 to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”

The president’s authority over the military is thus limited to the specific tactical questions relating to any military engagement, while broader questions of whether to deploy the military at all rests with Congress. Even in extraordinary circumstances which require immediate military action (e.g. responding to an actual or imminent attack against the US, particularly when Congress is in recess), the Congress reasonably maintains the authority to reverse the president’s decision or limit its scope. In essence, any action taken by the president in such situations must be retroactively approved by the Congress, or halted.

The reasoning is clear: decisions that involve the expenditure of American treasure and blood are not to be taken lightly, and certainly not on a whim. They must be dissected scrupulously, ensuring that the interests of the American people (better voiced by their individual congressmen than by the president) are advanced.

As Hamilton rightly noted, to place any military (let alone the world’s most powerful military) into the hands of a single man is a trait of autocracy, not one of republics. It allows guns to become the enforcer of his whims, with nothing but the integrity of individual soldiers to rational principles as a check on his authority.

Thus the Founders did their best to institutionalize checks on the president’s military authority through Congress. While the president holds the sword, Congress holds the purse. More than that, the sword can only be unsheathed at Congress’s bidding – that is, in the interests of the people of the United States by protecting their rights from enemies foreign and domestic.

However perverse interpretations of the Constitution have become in the past one hundred fifty years, this principle ought to be defended ferociously. Americans’ constitutional rights and protections have fallen like dominoes for many decades, and indeed, this particular principle has suffered abuse before. But as a safeguard against a final collapse into socialism, ensuring that any decision to deploy of the military ultimately rests with the people and their congressmen falls second in importance to perhaps only the protection of man’s right to free speech.

Congress must reassert its constitutional authority, preferably by actually halting the president’s plan to bomb Syria rather than simply giving it a rubber stamp, lest the dangers outlined by Sen. Paul in his heroic filibuster several months ago cease to be a dystopian nightmare and manifest into a dystopian reality.

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* Congress is, as a body, largely responsible for this, having slowly diminished its own powers over the past century by successively erecting new bureaucratic bodies under the president and granting these bodies extensive authority to act autonomously without congressional approval – the implications of doing so where made clear during this year’s Summer of Scandal.

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