by Chris Edelson, Assistant Professor of Government, American University’s School of Public Affairs and Author of Power Without Constraint: The Post 9/11 Presidency and National Security
Last week, without congressional approval, Donald Trump ordered missile strikes against Syria. The argument for the strikes is, at first blush, compelling. We all saw the nightmarish pictures of murdered Syrian children. Syrian dictator Bashar al-Assad cannot be allowed to launch chemical weapons attacks against Syrian civilians with impunity. But additional questions present themselves. Is there legal authority for Trump’s decision? If Congress fails to act, what message will it send to the Trump administration, and what could this mean for future military action both in Syria and elsewhere?
It is clear there is no authority under U.S. law for the strike (nor under international law), and that if Congress continues to passively defer to Trump’s unilateral decision it will be sending Trump a dangerous message: that decisions about when, where and against whom to use military force are for the president alone to make. That is the view John Yoo notoriously endorsed when describing the scope of presidential authority after the 9/11 attacks, and it is a description of presidential power that is incompatible with constitutional democracy.
The simplest and also the most persuasive reading of the Constitution is that it assigns Congress authority over the decision to go to war, unless the United States faces an emergency situation requiring the president to repel a sudden attack without time to seek congressional authorization. As Charlie Savage noted last week, most scholars agree that this is what the framers had in mind when they created a new document for a national government that would for the first time contain an executive branch. As Louis Fisher and others have explained, the framers decisively broke with the then-existing British model by granting the national legislature this power. The president is not a king, and the Constitution assigned powers previously belonging to the British king either to Congress or to the president and Congress jointly.