Constitution Gives Obama No Power to Use Force in Syria

By Terence P. Jeffrey | August 28, 2013 | 4:42am EDT
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"We're actively looking at the various legal angles that would inform a decision."

That is what an anonymous administration official told the Washington Post this week about President Barack Obama's deliberations on whether he will personally involve the United States in another Middle Eastern war by ordering military action in Syria.

But the only law that ultimately matters here is the one Obama swore to preserve, protect and defend: the Constitution of the United States.

As recently as six years ago, Obama exhibited a clear understanding of the power the Constitution does and does not give the president in using military force.

"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," Obama, then a presidential candidate, told the Boston Globe in Dec. 20, 2007 interview.

Obama, then, could have been channeling James Madison or George Washington. He perfectly expressed the original — and, thus, the correct — meaning of the constitutional language on the use of military force.

Article 1, Section 8 of the Constitution says Congress shall have the power to "declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

As this column has noted in the past, James Madison's notes from the Constitutional Convention — as reported in Max Farrand's "The Records of the Federal Convention of 1787" — demonstrate that the Framers intended this language to deny the president the power to use military force without prior congressional authorization unless it was necessary to "repel" an attack.

The draft language discussed in the convention on Aug. 17, 1787, said Congress would have the power "to make war."

Charles Pinckney, a delegate from South Carolina, suggested giving this power to the Senate alone because, among other reasons, the House "would be too numerous for such deliberations" and the Senate would be "more acquainted with foreign affairs."

Pierce Butler, also from South Carolina, proposed "vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it."

It was then that Elbridge Gerry of Massachusetts and Madison himself "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."

Roger Sherman of Connecticut said: "The Executive should be able to repel and not to commence war."

"Mr. Gerry," according to Madison's notes, "never expected to hear in a republic a motion to empower the Executive alone to declare war."

George Mason, reported Madison, was against "giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace. He preferred 'declare' to 'make.'"

The Framers then voted to give Congress the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

George Washington presided over this Constitutional Convention that decided Congress should retain control over the use of military force except when it was necessary for the president to "repel sudden attacks." As longtime Library of Congress scholar Louis Fisher noted in his definitive book on the issue, "Presidential War Power," Washington confirmed the original meaning of this power when he dealt with the Creek Nation.

The Creek Nation, at that time, lived near the border of Georgia and territory claimed by Spain.

On July 24, 1793, Secretary of War Henry Knox and General Andrew Pickens wrote a memorandum to President Washington (that can now be found at the National Archives' Founders Online website). Here Pickens suggested that Washington raise an army of 5,000 men because Pickens was "decidedly of opinion that a demonstration of the power of the United States to punish the Creeks is the only measure which can be adopted to secure from their cruel depredations the Inhabitants of the South Western frontiers."

A month later, Washington responded to letter from Gov. William Moultrie of South Carolina asking about the Creeks.

"The Constitution vests the power of declaring war with Congress;" President Washington wrote the governor, "therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure."

Congress never did authorize offensive action against the Creek Nation, so Washington never took it.

Obama intervened in Libya's civil war without congressional authorization. Now, he ponders military action in Syria without congressional authorization. If House Speaker John Boehner meekly stands by as Obama repeats this usurpation of congressional power, he will have betrayed his own duty to defend our Constitution.

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