“If Congress does nothing to challenge the president’s illegal attack,” Daniel Larison warns, “they will be accepting own irrelevance in matters of war from now on.”
Yet there is a minority faction that wants to restore the Constitution.
“These offensive strikes against Syria are unconstitutional, illegal, and reckless,” Representative Justin Amash, a Michigan Republican, said. “The next speaker of the House must reclaim congressional war powers as prescribed in Article I of the Constitution. Speaker Ryan has completely abdicated one of his most important responsibilities.”
Members of the Senate have spoken up too. Prior to the strikes, Senator Rand Paul contested the notion that the president was constitutionally empowered to launch them.
And Democrats weighed in after the strikes, as well. “Trump’s decision to launch airstrikes against Syria without Congress’s approval is illegal,” Senator Tim Kaine said. “We need to stop giving presidents a blank check to wage war. Today it’s Syria, but what’s going to stop him from bombing Iran or North Korea next?”
“While Bashar al-Assad must be held accountable for his unlawful use of chemical weapons against civilians, the strikes that are being carried out are being done without an authorization from Congress, which is unacceptable,” Senator Bob Casey said. His colleague Bernie Sanders declared them “illegal and unauthorized,” while Senator Elizabeth Warren tweeted: “The Constitution gives Congress the power to authorize military action. If @realDonaldTrump wants to expand American military involvement in Syria’s civil war, he must seek approval from Congress – & provide a comprehensive strategy with clear goals & a plan to achieve them.”
Reasserting congressional control over war-making is substantively important.
First, the status quo undermines democracy. Voters casting their ballots in the 2018 midterms ought to be able to look to an up-or-down vote to determine where their representative stood on striking Syria, one of the most grave and consequential matters that the country has considered over the last couple of years. Instead, legislators escaped taking a stand, rendering voters unable to hold them accountable.
Second, as Tim Carney writes, it is corrosive to the rule of law “for a president to go to war through unconstitutional means,” and “the precedent of previous presidents’ illegal, unauthorized wars doesn’t make Trump’s unauthorized war legal.”
Third, as the law professor Ilya Somin points out, some of the prudential reasons that caused the Framers to vest the war power in Congress are even more relevant today:
Their greatest concern was ensuring that no one person would have the power to take the nation to war … This is an even more serious danger in an era when the Oval Office can be occupied by a dangerously impulsive and ignorant demagogue, thanks in part to the breakdown of political safeguards against such an eventuality. The Founders expected that such dangerous men would be kept away from the presidency by institutions such as the electoral college, which was supposed to exercise independent judgment and screen out demagogues. But, as early as the first contested elections in 1796 and 1800, it became clear that most electors would simply vote the party line.
In later periods, party elites exercised a similar screening function … That has obviously broken down in recent years, as the process has become more populist, leading to the election of Trump.The Founders’ fear that a president might launch a war to distract attention away from domestic political problems is also more plausible under modern conditions, where vivid 24-hour cable TV news coverage enables even a distant war to dominate public attention to a greater degree than was feasible two centuries ago.
If Hillary Clinton, one of the more hawkish politicians of her generation, was in the White House, there might be some prospect of Republicans reining in the war power. But because Donald Trump, a Republican, is in the White House, and because partisanship so often wins out over principle in Washington, D.C., the Democratic Party offers the best hope for restoring congressional control over the war power in the near future.