With the Arab League opposing war, the British parliament voting against military intervention, and France backing away without United Nations approval, President Barack Obama has been reduced to threatening unilateral military action against Syria. Not too much, just enough so the administration won't be "mocked," said one unnamed official. But also enough to violate the Constitution's requirement for a congressional declaration of war.
The nation's Founders feared just such a president and just such a moment. They revolted against an empire in which the imperious executive could, and did, routinely take the nation into war for no good reason.
It was not a system they wanted to emulate. Pierce Butler opposed "throwing into [the president's] hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction." John Jay pointed to the dubious motives that caused kings "to engage in wars not sanctified by justice or the voice and interests of his people."
So the Framers created what they believed to be a very different system. Most military powers went to Congress: raising and funding the military, writing the rules of war, issuing letters of marquee, and ratifying treaties. Moreover, according to article 1, sec. 8 (11), "Congress shall have the power ... to declare war." Future President James Madison explained the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature." Declare meant initiate, not simply acknowledge that the president had started a war.
Even Alexander Hamilton, who may really have wanted a king for America, recognized that as commander-in-chief the president was merely the "first general and admiral." The president's authority was "in substance much inferior to [that of the king]. It would amount to nothing more than the supreme command and direction of the land and naval forces ... while that of the British king extends to the declaring of war."
The Founders recognized that the president might have to respond to attack, and therefore chose "declare" over "make." However, this was a very limited grant of authority. George Mason favored "clogging rather than facilitating war" because he didn't believe the new chief executive was "safely to be entrusted with" the power to start wars. James Wilson also endorsed the shift in authority to Congress: "It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is in the legislature at large." Thomas Jefferson was in Paris during the Constitutional Convention, but approved the document's "effectual check to the dog of war by transferring the power of letting him loose."
This constitutional system is still in effect. Supreme Court Justice Antonin Scalia wrote: "Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the president under Article II. As Hamilton explained, the president's military authority would be ‘much inferior' to that of the British King."
No surprise, many presidents have pushed against the Constitution's restrictions, unilaterally employing the military for a range of operations. However, most such deployments have been limited and temporary and many had colorable legislative authority. Until the Korean War presidents didn't claim the unilateral power to bomb, invade, and occupy other nations.
Even strong presidents acknowledged the limits on their power. George Washington explained: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure." Abraham Lincoln said the Founders had recognized war "to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us."
Both Woodrow Wilson and Franklin Delano Roosevelt requested congressional declarations of war before intervening in foreign conflicts. Dwight Eisenhower, who commanded D-Day and the ensuing campaign against Nazi Germany, recognized that the Constitution was supreme: "When it comes to the matter of war, there is only one place that I would go, and that is to the Congress of the United States." He later added that "I am not going to order any troops into anything that can be interpreted as war, until Congress directs it."
At one time Barack Obama, a former lecturer in constitutional law at the University of Chicago Law School, agreed with his predecessors. In December 2007 candidate Obama acknowledged: "The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." Moreover, Joseph Biden, destined to become vice president, opined that the Constitution gave "Congress the power to initiate all hostilities, even limited wars" and threatened President George W. Bush with impeachment if the latter attacked Iran without congressional approval.
The Constitution doesn't refer to congressional "consultation." If the president had the authority to initiate war, meeting with legislators would make political sense. But the Constitution placed that authority with Congress. Only it can approve a war for the president to fight.
The Founders' reasons apply even more today. War-making is the most extensive and most abused executive power. Wrote James Madison: "Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instrument for bringing the many under the domination of the few."
So if President Obama wants to attack Syria, he must go to Congress. It doesn't matter if he only envisions limited bombing raids. Sending U.S. forces half-way around the world to strike another nation is war. There is no plausible claim that Syria is preparing to attack America. Damascus has no means of even reaching the U.S.
Nor are there constitutional exceptions for chemical weapons, bad dictators, Muslim nations, civil wars, Mideast crises, Islamist insurgents, or anything else involved in Syria. If President Obama is determined to, in the words of John Jay, "engage in wars not sanctified by justice or the voice and interests of his people," then the president must go to Congress.
The experience of Great Britain is instructive. Prime Minister David Cameron joined President Obama in demanding war. However, the House of Commons shocked the prime minister by voting 285-272 against a motion for war. The government's roughly 80-vote majority dissolved when even members of the two governing parties refused to sanction yet another Middle Eastern military crusade.
Asked whether he accepted parliament's vote, Prime Minister Cameron responded: "I also believe in respecting the will of this House of Commons. It is very clear tonight that, while the House has not passed a motion, it is clear to me that the British parliament, reflecting the views of the British people, does not want to see British military action. I get that and the government will act accordingly."
It is equally clear that the American people do not want to see American military action and members of the U.S. Congress both desire to vote on war and likely would vote against war. There will be no United Nations Security Council resolution and the administration is being deserted by America's European allies. When will the president "get that"?
If President Obama is intent on war, he must go to Congress. Going to war against Syria is not his decision to make.