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Congress doesn’t need to first declare war

In this image released by the U.S. Navy,

In this image released by the U.S. Navy, the USS Ross fires a Tomahawk missile last week at a Syrian air force airfield. President Donald Trump ordered a massive military strike on a Syrian air base on Thursday, April 6, 2017, in retaliation for a chemical attack he blamed on President Bashar Assad. Credit: AFP / Getty Images / Robert S. Price

So now President Donald Trump is a war leader. His decision to launch Tomahawk cruise missiles across an international border is an act of war. And, like most of America’s wars, it will never be declared by Congress.

Immediately upon the news of the Syria strike, Twitter erupted with complaints that the U.S. Constitution vests the power to declare war only in Congress. This common worry misapprehends both the structure of the Constitution and the historical understanding of the declaration of war.

Every U.S. president, all the way back to the founding, has at some point used military force without first obtaining the approval of the legislative branch. A few snippets: George Washington fought the so-called Northwest Indian War to subdue the native people of Ohio. On the eve of World War I, Woodrow Wilson ordered the Marines into Mexico. Half a century later Ronald Reagan invaded Grenada. In the Cuban Missile Crisis, President John Kennedy took the nation to the brink of nuclear war with the Soviet Union. In 2011, the White House justified President Barack Obama’s orders to attack Libya with the remarkable argument that because U.S. forces were conducting only bombing and using missiles, the actions did not constitute “hostilities” within the meaning of the War Powers Resolution of 1973 — a statute requiring that hostilities end within 90 days if no congressional approval is forthcoming.

True, presidents often claim to find justification for their wars in the language of existing statutes and resolutions.

But what about the congressional power to declare war? Scholars are sharply divided over whether the Framers intended it as a check on the executive’s “independent” war-making authority. Certainly at the time of the founding, the use of a formal declaration of war had fallen into disuse. Yes, there is a reasonable case to be made that the Framers did hope to restrict presidential use of the military without congressional assent. But the new nation did not behave as if a declaration was necessary.

Even 19th- and early 20th-century thinkers who considered a declaration of war to be important did not argue that it was constitutionally required. The reason a declaration should be made, wrote lawyer Daniel Chauncey Brewer in the 1890s, was that without it “neither enemies, friends, nor neutrals can be properly forewarned.” The function of a declaration of war, wrote Yale’s Simeon Baldwin, was to create or announce the “legal condition of things.”

The need for formal warning is the relic of an era of more difficult communications. Trump and Obama both warned Syria. President George W. Bush warned both Afghanistan and Iraq. The warning function, in short, is nowadays carried out by less formal but still effective means.

Congress possesses considerable powers to prevent the president from making war should it choose to exercise them. In particular, the House and the Senate can vote to cut off funding, as they did in 1973, overriding a presidential veto of a law refusing to pay for the bombing of Cambodia.

That’s tough to do, of course, but it would be a lot easier if Congress had not acquiesced over the years in the buildup of warmaking authority in the executive. There’s zero chance that the House or Senate would adopt a resolution restricting Trump’s freedom to act in Syria, just as there was zero chance that either chamber would adopt a resolution restricting Obama’s freedom to act in Libya.

The result is that the commander in chief can order the military into action whenever it suits his judgment. Many people, myself included, are uneasy with that hard truth. For better or worse, however, it’s been our practice for a very long time. Clinging to the long-dead notion that Congress must first declare war might be comforting, but it has nothing to do with reality.

Stephen L. Carter is a Bloomberg View columnist.


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