Is America’s military effort in the Middle East constitutional?

In recent testimony before the Senate Judiciary hearing, I supported the confirmation of Judge Neil Gorsuch, despite my disagreement with some of his opinions. I specifically noted that his textualist approach to statute and the Constitution is no vice in a federal judge. While I hold many liberal views, I also believe in a formalist and fairly textualist approach to interpretation.

What is curious, however, is how the supporters of such textualism and formalism are largely silent this week as the Trump administration is planning to send more troops into Syria and to intervene in Yemen … all without the declaration of war required by the text of Article 1, Section 8 of the Constitution.

{mosads}Hundreds of more troops are planned for the Syrian conflict even though the government in the country has declared that any U.S. military operating in the country are “invaders.” We have been conducting extensive bombing raids with troops on the ground in Syria for many months. We have spent billions of dollars on the effort. All without a formal declaration by the Congress.

Now, Defense Secretary James Mattis has reportedly asked the White House to lift restrictions on U.S. military support in Yemen. The war against Iranian-backed Houthi rebels  has not been going well for our Persian Gulf allies, particularly Saudi Arabia. The United States wants now to play a bigger role, but notably, the military is asking permission not from Congress but the president. It is his call. That is precisely what the Framers wanted to avoid.

The Constitution has long had its own unreliable allies in Congress. Adherence to the text of the document seems to be a forgotten value when it would take politicians to uncomfortable or inconvenient places. Politicians hate to declare wars. It is not that they hate wars. Wars are popular. Wars can be profitable.

The problem is that they can be blamed if wars do not go well. As a result, they have used open-ended resolutions that can be used by presidents to conduct wars at their whim while allowing politicians to later deny that they ever really supported interventions or were misled if the wars go badly.

This issue most famously came up with Hillary Clinton during her presidential runs. She was eager to express her support for the wars in Iraq and Libya until they became unpopular. Clinton then blamed others and insisted that she was misled, adding, “I wasn’t alone in getting it wrong.”

Of course, the spin ignored the objections at the time that Clinton and others were unwilling to even listen to objections or demands for substantive hearings. These calls were ignored because the members did not want to hear anything that would make it difficult for them to vote for a popular war.

She is certainly right that she was not alone in discarding her duties under Article I. The vote was a popular choice and paraded before cameras … until the war dragged on with thousands of casualties and hundreds of billions in expenditures. Democrats and Republicans share equal responsibility for reading out Article I, Section 8 from the Constitution.

The courts are equally at fault. They have accepted resolutions as substitutes for declarations and, more importantly, have allowed resolutions to become increasing general and vague, thus allowing (as we are now seeing) open-ended power to intervene militarily in virtually any country at any time. Indeed, challengers rarely get any judicial review at all. Years ago, I represented both Democratic and Republican members challenging the Libyan War, but the federal court barred consideration of the merits by the members as lacking “standing” to be even heard in federal court.

We were bombing the capital of a foreign power with a recognized government. We were spending billions in war funding. Yet, the Obama administration was allowed to simply call it not a “war” but a “time-limited, scope-limited military action” or a “kinetic action.” Indeed, the Administration insisted to the court that the President alone defines what is a war. Thus, as long as he does not use that noun, Article I effectively does not apply. You can call it a “police action” or a training exercise or a bean bag and that is all that you need to claim the right to go to war on a president’s sole authority.

Does that track with anyone even remotely familiar with our Framers? These were brilliant men who created a system of carefully balanced powers. Yet, Congress and the courts have made them into the world’s biggest chumps who can be circumvented by simply a change in nouns. Where the Framers wanted Congress to take ownership of any wars, courts now allow members to delegate that authority to presidents and sit as pedestrians watching whether wars prove to be popular or problematic.

History is now repeating itself. No one in Congress wants its own new intervention, but no one wants to be seen opposing interventions against terrorists. Suddenly all of the moral outrage over non-textualist readings of the Constitution are silent … just days after the last hearing. This is why moral outrage in Washington is something of a performance art. This performance, however, is nothing but a tragedy for those who believe in adherence to the text of the Constitution.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He has litigated various national security cases.

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