Early Sunday evening, a US Navy F/A-18 Super Hornet shot down a Syrian Air Force Su-22 that had just completed a bombing run targeting US-backed Syrian Democratic Forces (SDF) in the Raqqa region. The episode raises important questions under the U.N. Charter (see Adil Ahmad Haque’s analysis here). But what about U.S. domestic law?
Latest in War Powers
What’s the Legal Basis for the Syria Strikes? The Administration Must Acknowledge Limits on its Power to Start a War
Just over a month ago, the Administration launched missile strikes against the Assad regime in Syria. The strikes followed a brutal chemical attack that killed scores of innocent civilians. We are all disturbed by Bashar al-Assad’s horrific attacks on his own citizens. But that cannot obscure the question of what the President’s legal authority was for the missile strikes, or whether he usurped power that belongs to Congress.
A few weeks ago, AFRICOM quietly brought to an end a five-year-old combat-equipped deployment that for a time had raised some very interesting War Powers Resolution questions.
A White House’s responsibility to explain the legal basis for military actions such as the Syria missile strikes is dangerously undefined. This is not a problem unique to the Trump Administration. Nor do the differences between administrations in the choice, the structure, or timing of transparency fall out exclusively among party lines. What has emerged is a transparency regime shaped largely by broad discretion and perceived political necessity.
With six hours to spare before the 48-hour deadline in section 4 of the War Powers Resolution, the White House has sent the President's report to Congress on Thursday evening's missile attacks on Syria.
The text is here:
THE WHITE HOUSE
With one exception, I agree with Jack’s post on the OLC perspective on the constitutionality of President Trump’s Syria strike. Jack writes about Trump's strike:
“The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant,” wrote the esteemed Robert Jackson in the first paragraph of the most celebrated opinion in the most famous presidential power decision in Supreme Court history.
The United States has just launched a missile attack against Syrian air bases, apparently in response to the Assad regime’s use of chemical weapons against Syrian civilians.
The constitutional text governing national security law is full of gaps and oversights. This is particularly true with regard to the President. Notwithstanding occasional claims of extra-constitutional, emergency power by Congress or presidents, the basic theory and practice of the Constitution is and always has been that the federal government possesses only enumerated or implied constitutional power. And the defining role of the executive in U.S.
A little more than 99 years ago, and several months after the United States declared its entry into the Great War against the Central Powers of Europe, Charles Evans Hughes declared in a widely publicized speech that “the [constitutional] power to wage war is the power to wage war successfully.” In a new draft article