John Yoo:
In ordering Friday’s strike on a Syrian airbase, President Donald J. Trump sent the U.S. military into combat without Congress’s blessing. He has punished the Assad regime for its use of sarin nerve gas on its own people and only begun to correct the mistakes the Obama administration made when it allowed the Syrian civil war to metastasize into a conflict that is destabilizing the Middle East.
For its troubles, however, the Trump administration has come under fire from his conservative flank. Libertarian senator Rand Paul demands that Trump seek congressional authorization, while distinguished conservative law professor Mike Paulsen and National Review editor Kevin Williamson argue in these pages that the strikes violate the Constitution. Their arguments add to the outrage of Trump supporters, such as Ann Coulter, who tweeted: “Those who wanted us meddling in the Middle East voted for other candidates.”
This time, President Trump has the Constitution about right. His exercise of war powers rests firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congresses have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American wars, and World Wars I and II.
Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates, and Russian revolutionaries; to fight North Korean and Chinese Communists in Korea; to engineer regime changes in South and Central America; and to prevent human-rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf war, the 2001 invasion of Afghanistan, and the 2003 Iraq War, received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back from President Trump to Presidents Abraham Lincoln, Thomas Jefferson, and George Washington.
Common sense does not support replacing the way our Constitution has worked in wartime with a radically different system that mimics the peacetime balance of powers between president and Congress. If the issue were the environment or Social Security, Congress would enact policy first and the president would faithfully implement it second. But the Constitution does not duplicate this system in war. Instead, our Framers decided that the president would play the leading role in matters of national security.
If the issue were the environment or Social Security, Congress would enact policy first and the president would faithfully implement it second.
Those in the pro-Congress camp call upon the anti-monarchical origins of the American Revolution for support. If the Framers rebelled against King George Ill’s dictatorial powers, surely they would not give the president much authority. It is true that the revolutionaries rejected the royal prerogative, and they created weak executives at the state level. Americans have long turned a skeptical eye toward the growth of federal powers. But this may mislead some to resist the fundamental difference in the Constitution’s treatment of domestic and foreign affairs. For when the Framers wrote the Constitution in 1787, they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.
The most important of the president’s powers are those of commander in chief and chief executive. As Alexander Hamilton wrote in Federalist No. 74:
The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.
Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy and dispatch.” In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. . . . It is essential to the protection of the community against foreign attacks.”
The Framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by preexisting legislation. Instead, they can demand swift, decisive action — sometimes under pressured or even emergency circumstances — that is best carried out by a branch of government that does not suffer from multiple vetoes or that is delayed by disagreements. Congress is too large and unwieldy to take the swift and decisive action required in wartime. Our Framers replaced the Articles of Confederation, which had failed in the management of foreign relations because they had no single executive, with the Constitution’s single president for precisely this reason. Even when it has access to the same intelligence as the executive branch, Congress’s loose, decentralized structure would paralyze American policy while foreign threats grew.
