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Unleashing War – Why Congress Has the Power, Not the President


There is no doubt that when the United States, its lawfully deployed armed forces, or its law abiding and peaceful citizens are deliberately attacked by the lawless or derelict action of the armed forces of another state, the President of the United States has the authority, indeed he may have the obligation, to respond immediately with appropriate measures, including military force, to protect them. But when there is no such attack, what warrants the offensive use of U.S. military forces against a foreign state?  A Constitutionally approved treaty, binding upon the United States as a party, may warrant it, but only provided that our attack is decided upon and conducted strictly in accordance with the terms of that treaty.

Otherwise, ordering the armed forces of the United States to take offensive action against the armed forces of a foreign state, with whom we are at peace, breaches the peace. It openly initiates a de facto state of war, involving the United States. But, de jure, only the Congress has the power to declare that such a state exists between the United States and a foreign power. So, the President’s action, usurps Congress’s prerogative, directly contravening the Constitution’s provision. The President thus decides, by use of military power, what only Congress has the lawful power to decide.  This makes the action an unlawful abuse of the power the Constitution vests in the President.

The missile attack President Trump ordered against the territory and armed forces of Syria appear to be such an abuse. Indeed, President Trump’s action contradicted the understanding he himself relied on in the past, when he emphatically questioned the President’s power to take offensive military action without consulting Congress. He seemed then to comprehend that the Constitution requires that war be declared by Congress; that the de facto declaration of a state of war, by deployment of Presidential power, is an abuse of that power, in direct contravention of the Constitution’s provision and intention.

In explaining his decision to the America people , President Trump cited his emotional reaction to viewing videos of the painful deaths inflicted on the men, women and children (including infant babies) of Syria’s Idlib Province, deaths caused by Syria’s allegedly deliberate use of chemical weapons. If the allegation is true, such indiscriminate slaughter of non-combatants is a war crime a crime greatly aggravated by using heinous weapons, as unlawful as the attack itself.

President Trump’s emotional reaction against this horror ought to be, shared by all people on earth entitled to the name of decent humanity. But it is no excuse for ignoring his sworn duty to the Constitution. By his action, he breached the formal peace that subsists between the United States and Syria. If, at the moment, no formally declared state of war exists with Syria, it is simply because the Syrian government has taken no initiative to declare itself, in response to the attack. The President’s action has given it material cause to do so, thereby depriving the Congress of the United States of its critical Constitutional responsibility to represent and express the sovereign judgment of the people of the United States before the nation is committed to war.

This is a critically important national security issue in the most profound sense. Allowing the President of the United States to initiate a state of war with another state removes that sovereign decision from the hands of the people. As long as the state of war exists, it adversely affects the regime of liberty the permanent will of the people aims to establish. From being a regime of laws, instituted and construed to recognize and protect the God-endowed rights of the people, it becomes a war regime, in which the laws fall silent as and when the exigencies of war require.

Ever since 9-11 terrorist attack, the most persistent existential threat to our Constitution has been the ongoing degradation of liberty inflicted upon the people of the United States by the de facto state of war that attack precipitated. Ever since the attack, Americans awake to this implication have been greatly concerned with this degradation of liberty. We have stood firmly against the notion that our safety requires us to forego the safeguards with which the Constitution recognizes and protects God-endowed exercise of right the government of the United States, like all just governments, is supposed to secure.

We have done so when it comes to the individual exercise of right. But we have also opposed heedlessly aggressive militarism, because the plea of military necessity can so easily be abused by forces ambitious rather to curtail the decent liberty of the America people, than to preserve it. Many such people voted for Donald Trump, because his words led them to assume that he shared their determination to make sure our nation’s use of military force respected the salutary constraints and aims of the U.S. Constitution.

Now, however, President Trump’s action, and the emotional impulse that apparently gave rise to it, must lead them to question this assumption. Doesn’t he appreciate the difference between the President’s obligation to defend against an actual attack against the nation, and offensively punitive military action, driven by righteous passion, where no such attack has occurred? The Constitution’s provision regarding the declaration of war obliges our representatives in Congress to deliberate and debate the decision to commit our nation to war, on our behalf. It precludes impulsively emotional military actions.

This reflects the prudent expectation that the heavy burdens and sacrifices war requires will more likely be sustained, for the duration, by people convicted by some common sense of right and/or necessity. Discussion and debate about the declaration of war gives their elected representatives the chance to clarify this common sense, with convincing evidence, empirical reasoning and reasonably passionate exhortation.

But the Constitution’s requirement also reflects the experience of humankind, all too well illustrated by the history of the last century. The excuse of a war, fomented by stampeded passions (or thus justified after the fact,) has often been deployed by ambitious rulers seeking to distract people from their failures or their crimes. In October, 2012, Donald Trump showed his appreciation for this possibility in a tweet ( quoted in the article cited above) in which he observed “Now that Obama’s poll numbers are in tailspin—watch for him to launch a strike in Libya or Iran. He is desperate.”

Recently, Rush Limbaugh speculated that “Trump hadn’t attacked just Syria with the airstrikes, he also used the occasion to flip the script on a major domestic scandal.” Though he certainly didn’t mean to impugn President Trump’s motives, Mr. Limbaugh’s observation reminds us of precisely the suspicion the Constitution seeks to forestall. Because the whole Congress is involved in the decision to go to war, that decision is less likely to be driven by the ambition of one, or a few, self-serving persons. Even if it is thus slyly motivated, the deliberations of the Congress are intended to give conscientious representatives of the people, and those who heed them, a chance to warn the nation of that fact, if they have the character and courage to do so. We should be glad to see some of them show such courage now.


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