Reports continue to indicate that President Obama will ask the United States military to launch a limited strike on Syria. But is such an action legal or constitutional within the War Powers Resolution approved by Congress in 1973?
The answer to that question won’t come in the next week, or probably in the near future. The debate over the powers of the President and Congress within the War Powers Resolution (also known as the War Powers Act) has been ongoing since 1973, when Congress passed the act over the objections (and veto) of President Richard Nixon.
This week, outraged members of Congress were demanding that only the House and Senate could approve a military strike on Syria, under the terms of the War Powers Resolution, after the forces of ruler Bashad Assad were implicated in a chemical gas attack on Syrian citizens.
Other leaders in Congress insisted that President Barack Obama had to consult with the legislature before he took military action as the Commander in Chief of the nation’s military.
Still others outside Washington insisted that the President doesn’t have the power, under any circumstance, to wage war without congressional approval.
And there are others who believe the War Powers Resolution itself is unconstitutional, so the President can take offensive actions as the leader of the military.
In the Constitution, Article I, Section 8, says that Congress has the power to declare war and raise and fund the Armed Forces, but Article II, Section 2, names the President as the Commander in Chief.
The War Powers Resolution was an attempt to define the roles of Congress and the President in starting and finishing military actions. The last declaration of war in the United States was in 1942, and the nation’s military had been involved in Korea and Vietnam without a war declaration.
In 1973, with the Vietnam War winding down, Congress made sure that the Resolution staked its historic claim as the final word on when the nation went to war. President Nixon issued his unsuccessful veto, because he didn’t believe the Resolution was constitutional.
Since then, says the Constitutional Research Service, Nixon’s successors have believed the Resolution was illegal, that they have acted within its rules, and they have the power to act outside the Resolution.
“It is important to note that since the War Powers Resolution’s enactment over President Nixon’s veto in 1973, every President has taken the position that it is an unconstitutional infringement by Congress on the President’s authority as Commander in Chief. The courts have not directly addressed this question,” it said in a 2012 report after the Obama administration used military force in Libya.
In March 2011, President Obama explained that the U.S. military action came in support of a United Nations Security Council Resolution.
President Obama said that the actions were “in the national security and foreign policy interests of the United States,” and he had the power to take them “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”
The Justice Department followed with an opinion that “prior congressional approval was not constitutionally required to use military force in the limited operations under consideration.”
Link: Read The Opinion
When President Obama approved the use of military force in Libya, it was the 132rd time that a President acted under the conditions of the War Powers Resolution since 1973.
In some cases, Congress agreed with the President, but in many other incidents, members of the legislature believed the Executive Branch was overstepping its powers.
In 2011, James Baker and Lee Hamilton wrote a nonpartisan editorial for the Washington Post that spelled out the historic stalemate between the President and Congress about using military force.
“There is, unfortunately, no clear legal answer about which side is correct. Some argue for the presidency, saying that the Constitution assigns it the job of ‘Commander in Chief.’ Others argue for Congress, saying that the Constitution gives it the ‘power to . . . declare war,” said Baker and Hamilton. “But the Supreme Court has been unwilling to resolve the matter, declining to take sides in what many consider a political dispute between the other branches of government.”
In the current situation, the Obama administration won’t have a UN Security Council Resolution as cover, since Syria’s ally, Russia, is on the council.
And Rep. Scott Rigell, a second-term Republican from Virginia, has started a letter, signed by 69 Republicans and 13 Democratics as of Wednesday, demanding President Obama first acquire approval from Congress before any military action is taken in Syria.
“Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution,” the letter says.
House leader John Boehner was more muted in statement released through his spokesman. “The speaker made clear that before any action is taken there must be meaningful consultation with members of Congress, as well as clearly defined objectives and a broader strategy to achieve stability," said Brendan Buck.
Boehner and the rest of Congress are on their summer break for the next two weeks, making an appearance by the President before a joint session very unlikely for logistical reasons.
NBC reported on Tuesday that the White House has already talked to top Congressional committee leaders about the situation in Syria.
And two top Senate Republicans say they back military action in Syria.
Senators John McCain and Lindsey Graham endorsed limited military strikes in a joint statement issued on Sunday.
“With each passing day, we run the growing risk that Syria's vast caches of chemical weapons could be transferred to, or acquired by, forces that could pose a threat to the United States and our friends and allies,” the Senators said.
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