The Constitution and Syria (Again)
Well, so much for this article (in which I argue that President Obama's hesitation to use force against the Syrian government without congressional authorization could be seen as a fist step toward restoring the original allocation of war powers).
At Just Security, Ryan Goodman collects quick reactions from a range of scholars, including three with an originalist orientations (me, Saikrishna Prakash and Louis Fisher). Here's what I said:
President Trump’s military action against the Syrian government is unconstitutional under the Constitution’s original meaning. The Framers understood the declare war clause to require Congress to approve attacks on foreign nations. That the goals of the strike are laudable, that quick action may have been needed, or that vital national security interests are said to be at stake does not change the Constitution’s basic rule. The framers did not want the President to have unilateral power to involve the U.S. in military conflict.
President Trump may argue (as President Obama did with his 2011 Libya intervention) that the action is too small to count as “war” for constitutional purposes and so approval is not required. But that is not how the Framers saw it. In the immediate post-ratification era, even low-level uses of force—such as the 1798 “Quasi-War” with France and the 1801 naval action against Libya—were widely thought to require congressional approval.
President Trump’s actions are regrettable from a modern constitutional perspective. President Obama declined to use force against the Syrian government without congressional approval. He was criticized for this hesitation, but it was the right call, constitutionally speaking. It established a precedent (somewhat balancing Obama’s own unilateral action in Libya) in keeping with constitutional limits. Unfortunately that precedent is undermined by the current action, which reinforces the modern (and unconstitutional) idea of presidential unilateralism.
The article linked above has a longer but still fairly quick sketch of my originalist arguments against presidential war powers, with citations to longer works and applications to modern situations. See also this excellent analysis from Ilya Somin: Large-scale military intervention against Assad requires congressional authorization.
Unfortunately Professor Goodman did not find anyone to make an originalist case for the Syria strikes. I'll post a link once I see one.