On the War Powers Resolution and Syrian air strikes

The War Powers Resolution will probably be something brought up over the next week or so while people discuss the constitutionality of President Donald Trump’s airstrikes on Syria. The other discussion might be just what exactly the U.S.’ role in Syria is after UN Ambassador Nikki Haley told Fox News Sunday it was “up to Assad” on whether more strikes would happen, and promised more strikes would happen to hurt Assad if he still uses chemical weapons. All these strikes are happening despite no vote in Congress allowing the president to use the military against Assad, just like it didn’t happen in 2013 when former President Barack Obama did similar strikes and the Pentagon sent troo-err-military advisers into Syria.

The War Powers Resolution/Act is a continuous source of debate within U.S. foreign policy circles. The Constitution says in Article 1, Section 8 only Congress can declare war. Congress passed the War Powers Resolution in 1973 overriding a veto from Richard Nixon, in hopes of pushing back a little against executive overreach on issues of military action. The legislative branch was hoping to correct an abysmal mistake from 1950 where no vote on getting involved in Korea ever happened, nor was any resolution sent to Congress on the issue. The prevailing theory appears to be the War Powers Resolution allows the President to involve American troops in any combat, so long as he or she tells Congress about it within 48 hours. This comes from Section 4 of the act.

(a) Written report; time of submission; circumstances necessitating submission; information reported. In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth—

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

There’s also Section 5b which includes has the 60-90 day timeline, typically discussed as to how long U.S. military action can go on.

(b) Termination of use of United States Armed Forces; exceptions; extension period

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

But one thing Michigan Congressman Justin Amash explained on Twitter, is the fact Section 2 tends to be ignored in public discussion (emphasis mine).


SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(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.

The question now becomes whether Section 4 runs askew of Section 2. The former could be read as allowing the President to get troops involved in combat, then inform Congress of what’s going on. I believe this was something addressed in Clear and Present Danger by Tom Clancy where the Army Rangers were involved in an attack on a drug cartel without the knowledge of Congress. Clancy’s interpretation (and he was much smarter than I’ll ever be) was the traditional one regarding Congress knowing when troops were going into combat.

Yet, it’s possible the actual interpretation involves troop movements, not necessarily inserting them into combat. Example: If Trump had told Congress he was sending a carrier group to the Arabian Sea, then it would fall under the auspices of the War Powers Resolution. The same could be said if more troops were headed to Iraq or Afghanistan, where the U.S. still has active wars, or if there was an increase in troops in any of the other U.S. bases on foreign soil. It would still be up to Congress to approve whether the U.S. gets involved into any offensive action, say, airstrikes in Kosovo or Syria before those strikes could begin.

This is only a possible interpretation, not necessarily what the resolution actually means but it certainly seem plausible, given the constraints laid out in Section 2 and the Constitution itself. It’s why Trump-and, previously, Obama may have violated the War Powers Resolution and the Constitution by involving the U.S. military in offensive actions against Syria, without authorization from Congress. There needs to be a vote in Congress as soon as possible on whether the military should be involved in Syria (it shouldn’t). Senator Bob Corker claimed to be working on a new Authorization for Use of Military Force, but the text has yet to be released. He should do this sooner, rather than later, so Congress can debate and vote on the issue.

Whether they will is anyone’s guess.