In the wake of President Trump’s airstrikes against Syria, it is heartening to see so many voices in both parties rightly pointing out the constitutional requirement of congressional authorization for the U.S. to go to war. The reaction echoes the response of many members of Congress — as well as Trump himself — to President Obama’s proposal for a strike on Syria after Assad’s poison gas attack in the late summer of 2013.
However, one important factor that these critics have omitted from their reactions is that the intervention arguably does not rise to the level of a war. It may thus pass constitutional muster — provided that it is not allowed to veer off into a full-scale armed conflict between the U.S. and Syria, a step that the president would need congressional assent to take.
{mosads}Make no mistake: the Constitution gives Congress, not the president, the power to initiate full-scale warfare. Article I, Section 8 of the Constitution states, “The Congress shall have power…[t]o declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”
The Constitution’s chief architects maintained this position in the years after it was ratified. James Madison, the “Father of the Constitution” and the Bill of Rights, insisted in a later correspondence with Alexander Hamilton that “the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” Although Hamilton was generally a proponent of broad executive power, he nonetheless appeared to agree with Madison, writing in The Federalist #69 that the president’s powers are confined to “the direction of war when authorized or begun.”
So what kind of military action constitutes a “war” for constitutional purposes? Well, there’s the rub: it can be fairly argued that a limited airstrike does not a war make. For example, George Mason University law professor Ilya Somin — as strong a defender of congressional war power as any other legal scholar — has conceded that “Some small-scale uses of force may not rise to the level of a war and therefore can be undertaken by the president alone under his authority as commander in chief of the armed forces.”
Some, of course, beg to differ, such as Congressman Justin Amash. The Michigan Republican tweeted that “Airstrikes are an act of war” and thus require congressional authorization.
Yet there is arguably a difference between individual acts of war and a full-fledged war. International law already draws that distinction, albeit with difficulty. Constitutional law can legitimately do likewise, if only because short-term punitive strikes are far less likely to involve the dangers that full-scale wars pose.
As is so often the case with line-drawing in law and public policy, distinguishing limited military intervention from bona fide warfare is far from simple or easy. Nonetheless, as Professor Somin has noted, “[T]he fact that we cannot draw a precise line between the two does not mean that there aren’t cases that clearly fall on one side or the other. We can’t draw a precise line between people who are ‘short,’ those who are of ‘average’ height, and those who are ‘tall.’ But we can still easily recognize that Shaquille O’Neal is tall. Similarly, a large-scale military action against a foreign government clearly qualifies as ‘war.’”
So the constitutionality of Trump’s spanking of Assad depends on its ultimate scope. If it goes no further than an abbreviated series of airstrikes, then the president probably does not need congressional consent. If the assault succumbs to mission creep, however, degenerating into a protracted intervention with broader objectives such as regime change — as Obama’s Libyan intervention did in 2011 — then Congress’ approval will become a constitutional must.
If Congress withholds that authorization and the president defiantly engages in a protracted war anyway, Congress should flex its fiscal muscles and cut off funding. Such an action would align with the Constitution’s principles and save Middle Eastern and American lives.
Akil Alleyne (@AKalleyne) is a graduate of Princeton University and the Benjamin N. Cardozo School of Law. He is a former program associate at the Foundation for Individual Rights in Education.
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