By David Thornton
Only Congress can declare war, they say, so President Trump should have obtained a congressional authorization to launch his punitive attack.
This argument is based on a misunderstanding of the Constitution. While it is true that Article I Section 8 says that “The Congress shall have Power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” the focus should be on what the Constitution does not say.
For example, the Constitution does not say that the president, who it names as the “Commander in Chief of the Army and Navy of the United States,” shall obtain the permission of Congress before deploying the army and navy in combat. The Constitution also does not say that a declaration of war is required before ordering the military to attack.
That the president has the power to order the military into combat unilaterally is not a recent interpretation of the original intent of the Framers. In his excellent book, “The Savage Wars of Peace,” Max Boot details the numerous small, undeclared wars and military actions that the United States has been involved in during our short time on earth.
Proponents of declarations of war might be surprised to learn that America’s first undeclared war occurred in 1801, a scant 14 years after the Constitution was ratified. Although Congress authorized action against Tripoli in 1802, a formal declaration of war against the pirate kingdoms did not come until 1815 under James Madison. Yet if President Jefferson overstepped his constitutional authority in ordering the US Navy and Marines to go to war against the kingdoms of the Barbary coast in what is now Libya, there would have been opposition from the still-living Framers of the Constitution and authors of the Federalist Papers. Jefferson’s opponents criticized his Louisiana Purchase as exceeding his authority instead.
Although the US has been involved in many conflicts, only five wars have been formally declared. These include the War of 1812, The Mexican War, The Spanish-American War, World War I and World War II. That does not mean that all other conflicts were unconstitutional, however.
Congress has authorized the use of military force at least 13 times without declaring war. The first such authorization occurred even before the Barbary wars when Congress authorized John Adams to use military force against France during the Quasi War of 1798-1800. Congress has authorized the president to use military force many times in recent years including in Vietnam, Afghanistan, and twice in Iraq. These authorizations could be construed to fill the constitutional role of a declaration of war.
Many conflicts never had congressional approval at all. One of the largest undeclared wars, The Korean War, was never authorized by Congress. Neither was George H. W. Bush’s deployment of troops to Somalia or Bill Clinton’s deployments to Bosnia and Haiti. President Bush’s invasion of Panama received congressional approval only after the fact. President Obama never went to Congress for approval of his intervention in the Libyan civil war.
An opinion memorandum from the Deputy Counsel to the President from September 2001 quotes the Supreme Court in United States v. Verdugo-Urquidez (1990), “[t]he United States frequently employs Armed Forces outside this country—over 200 times in our history—for the protection of American citizens or national security” and goes on to note, “On at least 125 such occasions, the President acted without prior express authorization from Congress.”
The military actions in Korea, Bosnia and Libya were authorized by the United Nations even though Congress never signed off on them. In some cases, such as the Persian Gulf War, military force was authorized by both Congress and the UN.
In 1973, Congress was concerned enough about the possibility of abuse of presidential war-making authority that it passed the War Powers Act to clarify the constitutional roles of the president and Congress. The WPA requires the president to “consult” with Congress before introducing US troops into hostile or potentially hostile situations. It also requires the president to withdraw American forces after 60 days unless Congress grants approval for continued action.
The requirement to consult with Congress sets a low bar. It allows the president to act quickly and for a short time without a congressional approval. Under both the Constitution and the WPA, there is no specific requirement for the president to seek approval from Congress for a single military strike.
If a sustained campaign against a hostile foe is required, the rules are different. The War Powers Act, but not the Constitution, sets a 60-day time limit for unilateral actions by the president. Even then, neither law requires the president to ask for a formal declaration of war.
Why is Congress granted the power to declare war if such a declaration is not required under the Constitution? A declaration of war has legal implications that an authorization for use of force does not.
“In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of its property, and the apprehension of enemy aliens,” says the Congressional Research Service. “With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc.”
Undeclared and unauthorized military actions are still subject to international law. “Perhaps most important,” notes the CRS, “neither a declaration nor an authorization is necessary to trigger application of the laws of war, such as The Hague and Geneva Conventions; for that, the fact of armed conflict is the controlling circumstance.”
The lack of a declaration or authorization does not mean that the president’s actions are illegal under international or domestic law. President Trump’s strike against Syria was well within his role as commander-in-chief of the US military and his power to set foreign policy. A ground invasion and occupation of Syria would trigger different rules, but would still not require a formal declaration of war.