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Legal Analysis

Is It Legal For President Trump to Attack Syria Without Congressional Approval?

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President Donald Trump was not shy in 2013 about voicing his concern about the Obama administration contemplating taking action in Syria without congressional approval. And now, on Thursday night, news broke that the United States under the Trump administration has launched 50 to 60 tomahawk cruise missiles at a Syrian government airbase.  Reports indicate that the administration spoke with other countries about the attack, but didn’t get Congressional approval.

Congressman Ted Lieu (D-CA) has already proclaimed that a war against the Assad regime is illegal without Congress.

So, for the next few days, there will be some debate over whether it is legal for the President to launch such an attack against Syria without Congressional approval. The answer largely depends on who you ask, and, of course, over the last few decades, Presidents have launched strikes, attacks and wars without the explicit consent of Congress. According to the Congressional Research Service, from the Washington Administration to the present, Congress has enacted only 11 separate formal declarations of war against foreign nations in five different wars.  In fact, U.S. Congress has not officially declared war since World War II!

Some, however, are of the belief that many of these actions are unconstitutional, and what Trump did on Thursday night, without consenting Congress, crossed the legal line.

Let’s explain. Article I, Section 8, Clause 11 (the War Powers Clause) of the United States Constitution states the following:

[The Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

That means the power to declare war is with Congress. “Records from the constitutional convention in Philadelphia show the framers recognized that, in an emergency, the president could act unilaterally to repel a sudden attack against the United States,” writes American University Professor Chris Edelson.  Edelson goes even further. He believes that the President does not have the power to unilaterally attack Syria without congressional approval because that action would not be for the purpose of “repelling” a sudden attack against the United States. In fact, we would simply be intervening.

We live in a constitutional democracy, not a monarchy or an autocracy. The framers of our Constitution rightly divided national security powers between the president and Congress, assigning Congress the power to decide when to authorize military action outside of an emergency scenario. For nearly 70 years, Congress has, in most cases, allowed presidents to take control of this power. The cycle must be broken. It is essential to make clear that Donald Trump doesn’t possess unilateral power to decide when and where to make war.

However, as Edelson notes, for 70 years, Presidents have launched attacks on other nations without congressional approval. Various legal justifications have been used to take action. For example, President Obama waged attacks against ISIS without explicit congressional approval. Instead, he used the 2001 congressional authorization passed under President George W. Bush that was specifically aimed at perpetrators of 9/11 and Al-Qaeda.

In addition, the Obama administration determined that it was constitutional for the U.S. to direct the use of military force without Congressional approval in Libya because it was in the vital “national interest” of the United States.

The War Powers Act of 1973 also allows the President to act if they notify/consult Congress within 48 hours of using armed forces, and forbids armed forces from remaining in a region for more than 60 days without congressional approval or declaration of war.

What is Trump’s legal justification for the attack? We haven’t heard from his national security legal experts. However, Trump has already indicated a justification that mirrors what Obama used during his administration.

“It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons,” he said late Thursday night while addressing Americans about the attacks.

Sound familiar? In a 2011 memo on the justification for military force in Libya, the U.S. Attorney General found that President Obama  had the constitutional authority to direct the use of military force in Libya because “he could reasonably determine that such use of force was in the national interest.” The memo further states, “prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.”

But, the missile attacks are sure to start a whole new debate, and it will be interesting to watch who switches side. After all, back in October 2016, Republican Sen. Mike Lee said this when the Obama administration was considering similar action in Syria:

[It] carries potentially cataclysmic consequences which the American people have never debated in Congress… If President Obama and his advisors want to increase the involvement of the United States in Syria in any manner — including attacks against the Assad regime — they have a constitutional responsibility to ask for a declaration of war from Congress.”

 

 

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