Despite the relative popularity of the President’s use of airstrikes last week in Syria, the argument continues as to whether the President’s action was constitutionally problematic. The Congress has not debated, much less approved, a new authorization for force in Syria, whether against the Syrian government or ISIL (and it is notable that we have now taken hostile action against both sides of the conflict there). And there is no question that the President could not rely upon the existing AUMFs for last week’s airstrikes. Therefore, his only reservoir of power for this action is Article II of the Constitution. The President’s report to the Congress pursuant to the War Powers Act is here.
The folks at Lawfare have typically excellent commentary on the matter.
John Bellinger’s piece on the War Powers Report is here.
Andrew Kent’s piece is here (with a good discussion of originalist views on war powers allocation).
Jack Goldsmith’s piece is here.
If the President has a longer-term military strategy in Syria, his ability to engage there without approval from Congress is, legally, probably substantially limited. But because a federal court is unlikely to police the allocation of constitutional war powers, it is for Congress to defend its own prerogatives. Even without seeing a plan from the President, Congress should long ago have been debating the American military role in the Syrian conflict, or, at a minimum, the scope of presidential powers to attack ISIL. As long as Congress remains silent, however, it will continue to send a signal to this and other Presidents that it acquiesces in any military action. It is possible that members of Congress are reluctant to take a position on the use of force abroad, fearing being stuck with their vote if the mission goes poorly. But the use of American military force — and the blood and treasure of the American people — is not a matter on which the legislative branch should be perpetually silent.
J.R.Broughton 