By the time you read this we may have, in my opinion, unconstitutionally lobbed a few cruise missiles into Syria, perhaps even more than a few.  Or perhaps we will have agreed to Vladimir Putin’s scheme to take control of Syria’s chemical weapons stockpiles, thus avoiding yet another “kinetic military action.” Regardless of what happens, for me the constitutional case is quite clear: unless Congress declares that America is at war with Syria, any “Authorization for the Use of Military Force” (AUMF) passed by the Congress is unconstitutional.  The mere fact that Obama asked for such a resolution from Congress while at the same time insisting he didn’t need one should tell you that he believes he is on shaky constitutional ground.

In Article 1 Section 8, Clause 11 we find that “Congress shall have Power to … declare War…..”  To the Framers this meant that Congress and only Congress (because the power is nowhere else mentioned in the Constitution) had the power to initiate hostilities.  We’re not speaking here of the responsibility to repel sudden attacks and invasions; the Framers saw that responsibility, and accompanying power, to rest squarely with the Executive, and they declared the President to be the Commander in Chief in Article II, Section 2.  As the Framers saw it, when necessary, Congress would declare war and the President would prosecute it.  Simple.  But before the ink was completely dry on the document, however, we find Congress twice authorizing the use of force without a declaration of war (1798 – France, 1802 – Tripoli).  In fact, there have only been five formal declarations of war in U.S. history, and only the first one, for the War of 1812, was made before hostilities commenced.

The British of the colonial period already had a long history of undeclared wars, so the concept was not unknown to the Framers.  Declarations of war, however, “alter legal relationships between subjects of warring nations and trigger certain rights, privileges, and protections under the laws of war” says the Heritage Guide to the Constitution.  According to Hugo Grotius, whose 1646 treatise “The Law of War and Peace” the Framers were intimately familiar with, declarations of war provide notice of the legal grounds for the war and, for enemy nations, the opportunity to make amends and thereby avoid the conflict.

Much of today’s disagreement over the President’s war powers is caused in part by the 1973 War Powers Resolution (50 U.S.C. 1541-1548, commonly called the War Powers Act , or WPA) which served to only muddy the waters.  The WPA, passed over the veto of President Richard Nixon, was a response to Nixon’s clandestine bombing of Cambodia.  The President had gone too far, they said, and needed statutory restraints.  Congress specifically cited the Necessary and Proper Clause (aka, the “Elastic Clause”) for its authority in passing the Act.  Critics of the Act argue it effects an unconstitutional delegation of power, and that at least one clause, which states “such forces shall be removed by the President if the Congress so directs by concurrent resolution” represents a legislative veto, a practice already ruled unconstitutional in INS v. Chadha.

According to the WPA, the President may engage in hostilities only when there has been “a declaration of war, a statutory authorization for war, or a national emergency.”  In other words, Congress unilaterally amended the Constitution to include “statutory authorization for war” as one of its powers. Section 1544 of the WPA describes how presidential powers are to be exercised if the situation does not fall into one of these three categories.  The president has sixty days to conduct his own war.  Within that time, he must file a report with Congress unless (1) Congress has declared war, (2) Congress has “extended” the sixty day period by law, or (3) military necessity.

Bill Clinton ignored the WPA in Kosovo, arguing that Congress had funded, and therefore implicitly approved his actions.  But the WPA states that appropriations for military action do not constitute such WPA approval, so Clinton’s argument was frivolous.  Interestingly, in 2007, Presidential Candidate Obama wrote: “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  Yet as President, Barack Obama argued that handing off U.S. forces to NATO leadership obviated the need for a WPA authorization for Libya’s “kinetic military action.”  This argument is equally frivolous.

Yes, I think we can all agree that any nation’s or terrorist group’s use of indiscriminate chemical weapons is egregious, inhumane and should be opposed.  But I, like many Americans it seems, am not convinced that the most recent chemical attack was not conducted by the rebels themselves to set up just such a U.S. response, with or without the connivance of the Obama Administration.

Nevertheless, my advice to Congress would be to get rid of the unconstitutional War Powers Act and abide by the Constitution, i.e. declare war when it is appropriate.  We should impeach Presidents who commit U.S. forces without a declaration of war unless our country or its forces are directly attacked.