By Ivan Eland
No matter how the dust up over Syria ends, President Barack Obama should be commended for seeking congressional approval for any attack. Although such a strike would have bad repercussions for the United States in the Middle East region and violate international law (since it wasn’t for self defense and no United Nations Security Council resolution authorized it), at least Obama went against the Korean War precedent to reconnect with the founders. Starting with that war, the executive has conducted most minor military actions and even some other major ones—for example, the invasions of Grenada and Panama—without congressional approval, thus violating a crucial founding principle of the U.S. Constitution.
Contrary to conventional wisdom today, at the Constitutional Convention in Philadelphia in 1787, the founders gave most of the powers in foreign and military affairs to the Congress, not the president. The Constitution gave the Congress the power to regulate commerce with foreign nations; to define and punish piracies and felonies committed on the high seas and offenses against the law of nations; to make rules concerning captures on land and water; to provide for the common defense; to raise and support armies; to provide and maintain a navy; to regulate the land and naval forces; to call forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia; and most importantly, to declare war and grant letters of marque and reprisal.
In contrast, the president was only given the powers to sign treaties with foreign nations and appoint US ambassadors—both in consultation with the Senate beforehand and which afterward had to be approved with a two-thirds vote of that same body. The executive also got to receive foreign ambassadors and act as commander-in-chief of US forces on the battlefields of any war, which was construed narrowly in this fashion.
The founders gave Congress most of the powers in foreign and military affairs for an important reason. Prior to 1787, European monarchs had routinely engaged in wars of avarice and pique, with the costs in blood and treasure falling on the common citizen. To avoid a repeat of such calamities (which have continued in civilization down to today), the founders gave jurisdiction over most such matters to the Congress, especially the power over war and peace. They even had the intention of constraining the few powers given to the executive.
According to the record of the Constitutional Convention, it was originally proposed that Congress would have the power to “make war.” But James Madison and Eldridge Gerry proposed changing this phrase to “declare war,” thus “leaving to the Executive the power to repel sudden attacks.” This change was likely made because an attack on America could occur when the Congress was out of session (which it was far more back then than now) and couldn’t act in a timely fashion. And the Congress was also given the power to grant letters of marque and reprisal, with the clear intent of having Congress authorize even limited military action. Thus, some gray areas of the Constitution exist, but the founders’ intent with regard to the war powers isn’t one of them.
Yet since the Korean War, when Harry Truman decided to launch a major war without getting congressional approval, the executive has regularly abused Congress’s constitutional war powers. Now it is common for presidents—including the two Bushes for the two Iraq wars, Bill Clinton for the war for Kosovo, and Barack Obama for proposed strikes against Syria—to claim that although they don’t need congressional approval to make war, they are doing us all a favor by getting the people’s branches to take some responsibility for their martial actions. Some presidents haven’t even asked Congress for a vote on wars they conducted—for example, Richard Nixon for the secret bombing of Cambodia, Ronald Reagan for the invasion of Grenada, George H.W. Bush for the invasion of Panama, and Obama for the recent war on Libya. Of course, the Congress has willingly let these flagrant violations of the constitutional war power go unpunished—impeachment would seem to be the proper penalty for such bald violations of a critical tenet of the Constitution. Naturally, nowadays media commentators regularly blithely announce—as they have recently in the crisis over Syria—that the president doesn’t really need to seek congressional approval for a limited military action. And some imply that Obama is doing so out of weakness or lack of leadership. In fact, Obama should be praised for following the Constitution, especially after he failed to do so in his earlier adventure in Libya.
But in the event that the Syrian crisis is not solved diplomatically, Obama could decide to go ahead with an attack, even if he would lose a vote in Congress. Clinton did this in Kosovo. That would be the worst possible outcome—the executive conducting a war that at least one house of Congress rejected or would have nixed. And some of the Obama administration’s rhetoric seems to indicate thoughts of going down that route. John Kerry has said that even with limited military strikes on Syria, the administration was not “going to war” with that country, perhaps implying that only “wars” need congressional approval. Certainly the Syrians at the business end of sea-launched cruise missiles or aircraft-delivered bombs or missiles would think a war was going on. And so would have the nation’s founders.
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