The Power to Declare War in Syria

I was please to hear that President Obama will be seeking congressional authorization to take action against Syria, even though his announcement is accompanied by the claim that he believes he already has the power to attack Syria. Based on Mike Ramsey’s work in this area, I believe that the Constitution’s assignment to Congress of the power to declare war indicates that it is Congress that has the power to initiate wars against other countries, not the President. Moreover, I also believe, as Mike has argued, that an attack on weapon stockpiles of another country would be an act of war.

While Mike’s work on the power to declare war is well known, it should be noted that it was truly pathbreaking, as it explained how a clause that spoke of “declaring war” could operate to govern not simply announcing a war, but initiating a war without an announcement. It is a great example of how the originalist work of  the last two decades has taught us about the meaning of our Constitution.

I believe it is desirable that President Obama seek congressional authorization even though it is quite likely that he is doing so only for political cover. In our world, constitutional principles are often followed because of concern about the political consequences. And we can hope that if the constitutional principles are followed often enough, even if only due to political considerations, that they will come be seen as mandatory.

In recent years, there have been several precedents for Presidents seeking Congress’s approval to initiate wars. George W. Bush sought Congress’s authorization for both of his wars in Afghanistan and Iraq. Sadly, though, Obama’s attack in Libya and Bill Clinton’s in Kosovo did not seek congressional approval. But Obama’s request for authorization here will make it easier in the future to argue that such authorizations are constitutionally required.

Update: Glenn Reynolds makes this interesting suggestion: “If I were the Congressional leadership, I wouldn’t take a vote unless Obama promised to abide by it. Otherwise, what’s the point?”

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Mike:

    The blogs have been buzzing with this issue lately. I have come to agree with the position you advance here. There is, however, a question, I have regarding the contingent limits upon the exercise of Presidential war making power.
    Yes, all would agree that the Madison – Gerry exhange effectively yields to the Executive the power to repel an invasion. Pretty sensible approach for the historical period.
    Suppose, hostile action is not an invasion – but rather an attack upon American Forces in International waters. Does the President have the authority to unilaterally order retaliation upon a) the striking hostile force and / or b) the sovereign state to which the striking force belongs? Clearly, this is not an invasion. Simply put: What is it and what is the appropriate constitutional remedy?

    gabe

  2. Mike Rappaport says

    I am no expert, but under the Mike Ramsey view, the question is whether the other country has already started a war with the U.S. An attack on international waters would be an act of war, and so the President could respond.

    • gabe says

      Thanks Mike:

      I was thinking more in terms of the “b” part of my question. Obviously, we can counter attack – but could we, without congressional authorization, say, launch devastating missile attacks and / or invasion of the foreign entity.

      Now, it may seem to be splitting hairs, but I think (if for no other reason than my own continuing education) that there is a difference between repelling an attack and then going on to engage on the “bad guys” home shore.

      Or is this a case, where the Congress may, via positive law, pre-authorize the Executive to conduct such operations.
      I am ever mindful of the Gulf of Tonkin resolution and the perfidy possible with the Executive, but assuming a prudent Executive and a similar Congressional understanding of such an Executive, would this be permissible?
      heck, I don’t know!!!

  3. John Ashman says

    There is little, if any difference, in going to war in Syria, or going to war with France or Germany. There is no threat to the US and none of those countries have declared war or attacked us. If the President wanted to go to war with France, we would demand a congressional authorization for war, if not a complete psych exam, and that standard should apply to Syria as well. There is no power of “World Police Force” in the Constitution, nor an approved reciprocal defense treaty with Syrian rebels.

    • gabe says

      John:

      I agree that there does not appear to be any real “interest” (national/ security/ or otherwise) involved in the Syrian situation; however, what is at issue here is the extent of the Executive’s ability to commit US forces, both with and without Congressional authorization.
      I have, at times, recognized that some may read into the Declaration almost a moral imperative to be a “Police force.” This, of course, was adequately countered by Madison’s assertion that we should only do so by moral suasion and not engage our forces so lightly.
      However, we must engage the world as it is and thus my question as to limits for Executive action.

      How say you, John?

      regards, gabe

      • John Ashman says

        “peace, commerce, and honest friendship with all nations, entangling alliances with none.”

        The President should have power to respond to an actual attack and nothing more, IMO. That the power to declare was given to Congress, by omission, it wasn’t given to the President. He can do as he wishes with the military, as long as they obey, but the Congress has the power to impeach him as well and going to war in Syria would be an impeachable offense.

        My feeling is that we don’t need to engage the world at all, unless we have no choice. There is clearly a choice here, and the cause to go to war may be far less real than WMDs were in Iraq.

  4. Mike Rappaport says

    There is actually a split among originalist on this issue of whether the President can fight only a defensive war or whether he can also fight a full offensive war. Sai Prakash argues for the former; Mike Ramsey for the latter. There are many scores of pages on it if you are interested.

    • gabe says

      Mike:
      Thanks. Prakash, at times, seems a little weak with respect to refutation of “pragmatist” theory. Funny thing is, while conclusion may be right, argument may appear strained at times.

      • gabe says

        Mike:

        Gets even more interesting. Prakash, in his effort to demonstrate that “declare war” had many meanings and consequently does not support a purely “formalist” interpretation, cites the recall and / or dismissal of an ambassador as a “declaration” of war.
        Yet, the Executive (via the State Department) is the initiator of all such actions. I do not recall the congress being consulted in these situations. Thus, we have a situation whereby the Executive can “declare war” as it was understood at the time of ratification.
        Additionally, Prakash also argues, and cites historical examples, that aligning with, or entering into treaty obligations with a warring nation, was also considered a means of declaring war. The Executive has also done this without Congressional approval. Yes, the Senate must approve – however, the Senate is not the Congress.
        So, to some extent, Prakash undermines his own argument as it appears that the Executive can “declare”‘ war, if one uses the accepted broad 18th century meaning of “declare war.”

  5. R Ricard Schweitzer says

    Would it be too bold to suggest that we are not talking about “War” in its classical, Clausewitzian classification?

    We are actually talking about combat or hostile “operations” (using the words of General Ray Ordierno) in a particular “theater” which has particular “audiences” of individuals and groups of varying and particular interests.

    “War” is classically against an enemy in order to achieve a decision that is binding (for whatever period) between adversaries. Can that be said to be the issue before us now?

    If there is no “enemy” upon whom to enforce a “decision,” can there really be a “War?”

    • gabe says

      Richard:

      I agree that things do get “fuzzy” here. If not a war, then what? A police action?
      And what does this mean for the Executive’s prerogatives (such as they may be)?

      My old memory fails me when trying to recall the issue with the Barbary Pirates.
      Did the Executive seek congressional approval. Obviously, that approval was needed later to appropriate the funds for the settlement – but was their a prior approval from the Congress?

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