Diary

President Trump's unilateral Syria strike was unconstitutional and illegal, and he knows it

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Put aside, for a moment, the question of whether the United States was justified in launching an attack against the Assad regime in Syria on Thursday. In 2013, President Trump shot off numerous tweets that stand in contradiction to his policy today, but this article will focus on two in particular.

Four years ago, Trump had it right. While the Commander in Chief has plenty of authority, the power to initiate war resides with Congress. And make no mistake-the attack was an act of war-launching 59 cruise missiles against a foreign state cannot be described as anything else.

The Constitution, specifically Article 1, Section 8, is explicitly clear that Congress alone has the authority to declare war and grant letters of marque and reprisal, while Article 2, Section 2 puts the President in charge of the armed forces. Alexander Hamilton explained this in Federalist #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.”

And James Madison wrote this in a letter to Thomas Jefferson:

“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.”

It is clear that President Trump exceeded his constitutional authority.

But what of his statutory authority, found in the War Powers Resolution of 1973, also known as the War Powers Act?

President Trump exceeded his authority under the law as well. Section 2, part C makes this clear:

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

And Section 3 dictates that:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

There was no declaration of war, no authorization of force, and no attack upon the United States in any way by the Assad regime. President Trump did not consult with Congress at all.

There is no question that President Trump not only violated the Constitution, but he also violated the War Powers Act. And he knew better. Unfortunately the general public either doesn’t understand this or doesn’t care, and Congress lacks the spine to assert it’s own proper authority.