Tags: Iraq | constitution | congress | quds | anbar

Defenders of Trump's War Powers Take It Too Far

us president donald trump at the white house
U.S. President Donald Trump at the White House in Washington, D.C., Jan. 16, 2020. (Nicholas Kamm/AFP via Getty Images)

By Friday, 17 January 2020 01:05 PM Current | Bio | Archive

Modern presidents of both parties have had a view of their power to initiate military force that goes well beyond what the founders envisioned.

Barack Obama and Donald Trump both claimed the power to intervene in Syria for humanitarian reasons, and Trump has spoken of retaliating against an Iranian attack on Saudi Arabia.

None of this is compatible with any reasonable interpretation of the Constitution, which locates the power to declare war in Congress.

Trump’s ordering of a drone strike to kill Iranian General Qasem Soleimani was, by contrast, much more defensible as a legitimate exercise of the president’s powers. Even so, it matters which of the proffered legal justifications for the killing the administration embraces, because some of them could easily be taken too far.

That’s why it’s good that Congress is debating the president’s war powers, even if that debate does not result in new legislation.

The most straightforward case that Trump was within his legitimate powers rests on the congressional authorization of military force in Iraq back in 2002. That’s what makes the continued U.S. presence in Iraq, and the hostilities it often involves, constitutionally permissible.

It would not require a new congressional authorization for an American soldier to shoot a member of Iran’s Quds force in a firefight in Anbar Province in Iraq.

It should not require a new authorization, either, to attack the man directing force against Americans and American allies, especially when he is in theater rather than in Iran.

Some defenders of the drone strike maintain that Trump did not need that 2002 authorization. They say that the Constitution, on its own, gives the president the power to act against people who threaten violence against Americans. Top administration officials have said that the threats do not need to be "imminent" to warrant such action.

This claim of inherent constitutional authority is a dicier proposition.

The War of 1812 is a precedent that seems directly opposed to it. In June of 1812, President James Madison told Congress that British cruisers had "wantonly spilt American blood within the sanctuary of our territorial jurisdiction."

An American response of "moderation and conciliation" had achieved nothing: "We behold our seafaring citizens still the daily victims of lawless violence, committed on the great common and highway of nations, even within sight of the country which owes them protection . . . We behold, in fine, on the side of Great Britain, a state of war against the United States, and on the side of the United States a state of peace toward Great Britain."

Yet even in the face of continuing attacks that Madison characterized as warfare against the U.S., he said that the decision between continued passivity and "opposing force to force" belonged, under the Constitution, to Congress. He didn’t even explicitly recommend either course to Congress, which promptly voted to declare war.

Perhaps Madison was over-scrupulous.

If the president has the authority to order military action without congressional approval whenever he thinks it will block threats to Americans, however, the implications are far-reaching.

It would mean that Trump had the power not just to strike against Soleimani, but against his superiors in Iran itself. It would mean that Trump, or his successor, could launch an invasion of Iran without any new act of Congress.

If Congress disagreed vehemently enough, its options would be highly constrained.

It could cut off funding for operations in progress, or perhaps even remove the president from office. (Either course would in practice require a legislative supermajority against the president.)

Anyone who thinks that the president’s powers theoretically extend this far should hope that we never have one reckless enough to exercise it this way. It’s important to restore a sense of the constitutional limits on the president’s war powers. It’s even more important to make sure that we elect presidents who won’t push those powers to their limits.

Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of "The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life." To read more of his reports — Click Here Now.

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It’s important to restore a sense of the constitutional limits on the president’s war powers. It’s even more important to make sure that we elect presidents who won’t push those powers to their limits.
constitution, congress, quds, anbar
Friday, 17 January 2020 01:05 PM
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