Rand Paul: Let’s face it, this Syria strike is unconstitutional

posted at 6:01 pm on April 7, 2017 by Allahpundit

Agree with him or not, at least he’s consistent. Not every Republican is.

In September 2013, while Obama and Congress were weighing what to do about a different, much deadlier Assad sarin attack, Paul introduced a “sense of the Senate” resolution declaring military action against Syria unconstitutional absent congressional authorization. It didn’t pass, for a simple reason: Congress likes it when the president acts unilaterally in matters of war. It spares them from having to take a tough vote they’d have to answer for later, every federal legislator’s worst fear since the Iraq war. It’s hard to think of a more craven, pitiful abdication of congressional duty than Congress repeatedly shrugging at the executive branch seizing the power to initiate war for itself but they’ve been doing it for years. (Remember Libya?) And they’ll go on doing it, apart from the occasional lip service paid to legislative prerogatives by people like John Boehner.

Is Paul right that last night’s strike was unconstitutional? Your answer will depend on whether you think, as many superhawks do, that the president’s power over warmaking is supreme as commander-in-chief. I’ve never understood that argument given that the Constitution gives Congress the power to declare war; the commander-in-chief gets to decide how war is waged but not whether it’s waged. The statutory compromise reached decades ago in this area is the War Powers Resolution, which attempts to limit the president’s power to initiate war without Congress’s approval. (Virtually every White House since the resolution was passed in 1973 has questioned its constitutionality as a potential infringement on the executive’s powers over war.) The key part:

(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 [i.e. an AUMF], or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The only situation under the Resolution in which the president doesn’t need congressional approval is if he’s forced to act immediately to repel an attack on the country, a situation that obviously doesn’t apply to last night’s bombing of Syria. Which means, if you think the War Powers Act is constitutional, Trump’s actions last night were certainly illegal. The only way out of that box is to try to shoehorn the attack on Syria into an existing AUMF like the one in 2001 authorizing action against Al Qaeda (which would be tough in this case given that Assad is fighting Al Qaeda) or to adopt some sort of “de minimis” rule of thumb in which the president gets to bomb whoever he wants so long as it’s only a few bombs, a one-off thing, etc.

Or is there a third way? Back in 2011, when the GOP was pretending to care about congressional authorization for intervention in Libya, the Obama White House floated a novel reading of the War Powers Resolution. Because NATO, not the U.S., was in the lead in Libya; because the U.S. was attacking a country without an air force exclusively from the air, leaving the risk of American casualties at practically zero; and because there was little chance of the war escalating, the U.S. wasn’t really “involved in hostilities” for purposes of the War Powers Resolution. The resolution can’t apply if there’s no real “war” to speak of. The Trump White House could try something like that too — i.e. because it was a “limited” strike, because Assad hasn’t fired back (yet), because the U.S. isn’t currently engaged in any broader war in Syria (although we sort of are), there are no “hostilities” here that would require Congress to weigh in. Never mind that smoking crater that used to be a Syrian airfield.

By the way, when this subject came up in 2013, superhawk John McCain answered objections about Obama needing congressional approval by essentially saying, c’mon, what are we gonna do — impeach him if he bombs Assad without an AUMF? So, that’s how seriously war powers are likely to be taken next week.


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