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04/21/2017

The Syria Strike and the Quasi-War with France
Andrew Hyman

In 2015, Michael Stokes Paulsen and Luke Paulsen wrote this: "Congress’s power 'to declare War' is an on-off switch; it is not a 'dimmer switch' with which to control the Commander in Chief."  I believe that is generally correct as an original matter, for the reasons that the Paulsens explained, because the framers refused to give Congress any power to "make" war (i.e. to conduct it).

In the case of the recent missile strike on Syria, Professor Paulsen writes that the strike was unconstitutional because  Congress did not declare war or otherwise authorize the strike against Syria.  However, Congress has indeed been authorizing hostile acts against Syria.  Just to take one recent example, Congress decided a few months ago to give the president authority to send surface-to-air missiles to Syrian rebels.  According to news reports, President Obama signed that bill in December.  Must the president now only destroy Syrian aircraft by providing missiles to rebels who will do it, instead of using tomahawk missiles to destroy Syrian planes sitting on the ground? 

In 1798, Congress authorized the president to take some specific warlike measures against French naval ships, as part of a quasi-war (see An Act further to protect the commerce of the United States).  The legislation was later upheld by the U.S. Supreme Court in the case of Bas v. Tingy.  The legislation authorized U.S. "vessels" to take action against French vessels.  But suppose a naval battle between a French ship and an American ship was raging near shore off the coast of Florida, and American cannons happened to be situated on shore, and the question became whether the president of the United States had power to authorize those cannons to fire upon the French ship in order to help the American ship.  Would anyone really say "no"?  Would anyone say that the legislation only authorized a partial or imperfect war of the naval kind, so that any use of land forces would have been illegal?  The problem with that line of reasoning is that it would defeat the original constitutional meaning of the war power which allowed the conduct of war to vest in the president.  It is not entirely clear how the lessons of the Quasi-War with France apply now to Syria, but I do think it would be silly to suppose that the Constitution required the U.S. ship to sink without firing the cannons from shore at the French ship.