Does the president need Congress’ approval to use force in Syria?
September 4, 2013
By Jeremy Quattlebaum, Student Voices staff writer
In light of a reported chemical weapons attack by Syrian President Bashar al-Assad against his own people, the Obama administration is trying to persuade Congress to authorize a military strike on Syria.
President Obama has been lobbying congressional leadership to endorse military action against the Assad regime. Sens. Robert Menendez (R., N.J.) and Bob Corker (R., Tenn.) have drafted legislation with support of the president to use military force. The bill says that the United States’ intention for intervention is a response to the use of weapons of mass destruction. The measure also aims to protect the interests of the United States and its allies against the use of such weapons and to hinder Syria’s ability to use the weapons.
The vote on the legislation is expected to be close. But does the president need Congress’ approval to authorize use of force in Syria?
Well, that depends on how you look at Article I, Section 8, of the Constitution and the 1973 War Powers Act.
Article I, Section 8 says Congress shall have the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” That means Congress must make a formal declaration of war before a president can authorize military action against another country.
But that’s in cases of a full-scale war. Congress hasn’t formally declared war since World War II. What if a onetime military action, like in Libya in 2011, or the bombing campaigns in the Balkans in the 1990s, is at stake?
In those instances, the president can authorize military action under the 1973 War Powers Act, which was drafted to allow the president to quickly deploy troops for short periods to protect the United States and defend national interests abroad. The president must notify Congress within 48 hours of initiating military action. U.S. troops are barred from fighting for more than 90 days without congressional approval.
The War Powers Act was in response to the Korean and Vietnam Wars. The president sent troops to a “police action” in those countries without the authorization of Congress. The Korean War lasted three years, and U.S. military fought in Vietnam for nearly a decade
Presidents have maneuvered around the law several times. In the bombing campaign against Libyan dictator Moammar Gadhafi, command of U.S. forces was transferred to the NATO command, an alliance of European and North American countries.
So why is Syria different and why is the president seeking Congress’ approval?
This is where it gets a little tricky. Syria has not attacked or threatened the United States or its allies. Since there is no threat to Americans or U.S. allies, it would be hard to argue that the War Powers Act applies. And some legal scholars say that without congressional approval, military action would be unconstitutional.
“I think it’s pretty clear that an American attack, without the sanction of the United Nations, the support of allies, the authorization of Congress — or, it must be said, much hope of meaningful success — would violate the Constitution,” said Garrett Epps of Baltimore Law School.
“U.S. citizens and military personnel are not under attack,” Epps said. “It is not a split-second emergency. … This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between president and Congress. Sending our missiles against Syria is an act of war. If it is to be done, Congress, not the president, should approve.”
Other legal scholars argue that it could go either way, depending on international support and shifting views on the issue. University of Virginia law professor Robert F. Turner wrote, “As a policy matter, there are compelling arguments both for getting Congress formally on board first and against using military force to ‘punish’ Syrian President Bashar Aasad. As a question of international law, the unilateral use of force without Security Council authorization to ‘punish’ even a notorious tyrant and war criminal finds little support. But, pursuant to the Constitution, the President clearly has the power to do so.”
What do you think?
Does the president need Congress’ approval before taking military action against Syria? Does the 1973 War Powers Act apply to Syria? Join the discussion and let us know what you think!
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