Attack on Syria Illegal and Unconstitutional?
Congressman Tom McClintock issued the following statement regarding reports of impending military action against the government of Syria.
I am deeply concerned about reports that the President is preparing to order acts of war against the government of Syria without congressional authorization.
The Constitution clearly and unmistakably vests Congress with the sole prerogative "to declare war." The President's authority as Commander-in-Chief to order a military attack on a foreign government is implicitly limited by the Constitution to repelling an attack and explicitly limited under the War Powers Resolution to: "(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." Unless one of these conditions is present, the decision must be made by Congress and not by the President.
Nor does our participation in NATO allow the President to order an unprovoked act of war. The North Atlantic Treaty clearly requires troops under NATO command to be deployed in accordance with their country's constitutional provisions. The War Powers Resolution clearly states that the President's power to engage United States Armed Forces in hostilities "shall not be inferred ...from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities..."
Nor does the United Nations Participation Act of 1945 authorize the President to commit U.S. Armed Forces to combat in pursuit of United Nations directives without congressional approval.
The authors of the Constitution were explicit on this point. Madison said, "In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department... ...Those who are to conduct a war cannot in the nature of things, be proper or safe judges whether a war ought to be commenced, continued, or concluded."
In Federalist 69, Alexander Hamilton drew a sharp distinction between the American President's authority as Commander in Chief, which he said "would amount to nothing more than the supreme command and direction of the military and naval forces" and that of the British king who could actually declare war.
Indeed, it is reported that the British Prime Minister has called Parliament into special session to consider the question. How ironic it would be if the British government were to act with the authorization of Parliament but the American government acted on the unilateral decision of one man.
War is not a one-sided act that can be turned on and off with Congressional funding. Once any nation commits an act of war against another, from that moment it is at war -- inextricably embroiled and entangled with an aggrieved and belligerent government and its allies that have casus belli to prosecute hostilities regardless of what Congress then decides.
If there are facts that compel us to take such a course, let those facts be laid before Congress and let Congress fulfill its rightful constitutional role on the most momentous decision any government can make.
I believe that absent an attack or imminent threat to the United States or a specific authorization by Congress, the order of a military attack on the government of Syria would be illegal and unconstitutional.
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