I’m beginning to understand why Cato’s Michael Cannon is frequently found tearing his hair out over Politifact, the Tampa Bay Times project ostensibly devoted to “sorting out the truth in politics.” When I look at how badly they’ve botched issues involving constitutional war powers, I feel his pain.
On Friday, the fact-checking organization weighed in on the legal debate over President Trump’s April 6 bombing of a Syrian airfield, with two essays concluding it was A-OK, constitutionally. “In some cases, people saying Trump needed congressional approval have gone too far” Politifact’s Lauren Carroll pronounces. For instance, Rep. Marc Pocan’s (D-WI) claim that there’s “no legal basis” for the strikes rates a full-on, needle-in-the-red “FALSE” on P-fact’s patented “Truth-o-Meter.” Tom Kertscher of Politifact Wisconsin asserts that: “For limited military activities like the missile strike, presidents can send in forces without approval from Congress.” You see, while the president may not have the legal authority to unilaterally launch a full-scale war, he can—if he thinks it’s a good idea, and assures himself it won’t bog us down—order up acts of war that don’t rise to the level of war: a light dusting of cruise missiles—a micro-aggression, constitutionally speaking.
What’s the legal basis for that? Politifact takes nearly 2,000 words to explain it all to you, but their answers are pretty thin: 1. Maybe the commander-in-chief clause?; 2. Other presidents have gotten away with stuff like this in the past; 3. Their lawyers say it’s ok; and 4. the 1973 War Powers Resolution “creates a process to act first and ask for permission later.” I rate those claims 1. False; 2. Irrelevant; 3. Nice try; and 4. Pants on Fire.
Per Kertscher, “Experts agree that in limited instances, such as the Syrian missile attack, a president has legal authority provided in the Constitution as commander-in-chief.” But that clause, as Hamilton explained in Federalist 69, merely makes the president “first General and admiral” of US military forces, and does not extend “to the DECLARING of war.” And “experts” who believe it empowers the president to launch sudden attacks in the absence of an imminent threat are in the minority. Over at the Lawfare blog, Fordham’s Andrew Kent sums up the legal consensus: “at the core of the question—under the original meaning of the Constitution, who has the power to decide to initiate foreign war, the president or Congress?,” he writes, “the weight of evidence now tilts so strongly toward one view that the debate should be considered over. Under the best reading of the original understanding of constitutional war powers, President Trump’s strike on Syria was patently unconstitutional.”
That the strike was “limited,” and not the opening salvo in a full-scale war doesn’t make a constitutional difference. If it did, leading war powers scholar Michael Ramsey asks, then “why did virtually everyone in the immediate post-ratification era think that limited naval warfare, as against France in the Quasi-War, required Congress’ approval?” That included the bellicose, pro-executive Hamilton, who acknowledged that for President Adams to go beyond defensive acts protecting American shipping would “fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.” Our first president even doubted his authority to take unilateral action against hostile Indian tribes, writing that “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.”