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By Lorenzo Arca

CBS News reported that American military officials stated a Syrian war jet carried out a chemical weapons attack on the “rebel-held town of Khan Sheikhoun” on Tuesday April 5, 2017.[1]  According to CBS News, “[t]hat attack left more than 80 people dead, including many children, and involved the deadly nerve agent Sarin gas, according to autopsies carried out in Turkey.”[2]  While Syrian President Bashar al-Assad has denied carrying out the chemical attack,[3] on April 6, 2017, President Trump authorized firing fifty-nine Tomahawk missiles “at an airfield in Syria from which officials said a chemical weapons attack originated.”[4]

These two events, will inevitably bring about a barrage of international law consequences that will further endanger an already feeble international law system in the days and months to follow.  But, rather than commenting on that messy aspect of the law, this post addresses the constitutional commentary surrounding President’s Trump military action.

The morning after President Trump’s Tomahawk response, Mr. Conor Friedersdorf’s article, Trump’s Syria Strike Was Unconstitutional and Unwise,[5] particularly caught my eye because it was the latest example of misleading media reports, blurring the constitutionality of the President’s executive war powers.  In his article, Friedersdorf attempts to prove President Trump’s attack was unconstitutional by using President Trump’s own words, as well as other Congressional Legislators’ constitutional analysis.[6]  Nonetheless, neither their analysis nor Friedersdorf’s can determine whether President Trump’s military response is Constitutional, as those analyses are inconsistent with the current constitutional paradigm regarding the war power.

“From the adoption of the Constitution until modern times, Congress has only passed six declarations of war:” (1) The War of 1812; (2) The Barbary Wars; (3) The Mexican War; (4) The Spanish-American War; (5) World War I; and (6) World War II.[7]  Reputable constitutional scholars have stated that “[c]onstitutional language suggests the President and Congress share the war power.”[8]  The Constitution vests in Congress the power to “declare war,” and “tax and finance expenditures necessary for defense.”[9]  Moreover, “Congress determines the rules of warfare, is empowered to raise and support an army and navy and makes all laws necessary and proper for exercising the war power.”[10]  But our Constitution also states that the President is the Commander-in-Chief.[11]  “The commander-in-chief clause, read in concert with provisions vesting executive power in the President to see that the laws are faithfully executed and peace preserved, authorizes the President to use military force where required to protect national interests unless Congress prohibits such action.”[12]

The Constitution does not vest in Congress the power to “conduct” or “make” war.[13]  The Constitution merely vests Congress with the power to “declare” war.[14]  In fact, even though an early draft on the Committee on Detail[15] gave Congress the power to “make” war, the Framers ultimately amended it, and only gave Congress the power to “declare” war.[16]  Therefore, “[f]or good or ill, the historical practice of the United States has not treated Congress’ power to declare war as necessary to engaging in war.”[17]  In sum, under the current constitutional paradigm, Congress’ formal declaration of war is constitutionally unnecessary, for the President of the United States to make war.[18]  And thus, while Mr. Friedersdorf may eventually be able to persuasively argue or even prove President Trump’s lack of wisdom, he will be unable to prove that President Trump’s response was unconstitutional.

[1] Russia Responds to the U.S. Air Strike in Syria, CBS News (Apr. 7, 2017, 4:58 AM), http://www.cbsnews.com/news/russia-us-missile-strike-syria-bashar-assad-chemical-attack-khan-sheikhoun-reaction/.

[2] Id.

[3] Laura Smith Park, Assad Claims Syria Chemical Attack Was ‘Fabrication’, in Face of Evidence, CNN, http://www.cnn.com/2017/04/13/middleeast/syria-bashar-assad-interview/ (last updated Apr. 13, 2017, 1:42 P.M.).

[4] Somini Sengupta et al., U.S. Airstrikes in Syria: Fallout Around the World, N.Y. Times, https://www.nytimes.com/2017/04/07/us/politics/trump-syria-airstrikes.html?_r=0 (last visited Apr. 8, 2017).

[5] See Conor Friedersdorf, Trump’s Syria Strike Was Unconstitutional and Unwise, Atlantic (April 7, 2017), https://www.theatlantic.com/politics/archive/2017/04/president-trumps-syria-strike-was-unconstitutional-and-unwise/522228/.

[6] See generally id.

[7] Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance & Procedure, § 6.9(b) Declarations of War (2017).

[8] Id. at § 6.9(a) Basic Principles.

[9] U.S. Const. art. I, § 8; see id.

[10] Rotunda & Nowak, supra note 7.

[11] U.S. Const. art. II, § 2; see id.

[12] Rotunda & Nowak, supra note 7.

[13] Id.

[14] Id.

[15] The Committee of Detail was a five-man committee appointed on July 24, 1887, by the Federal Constitutional Convention, tasked with the preparation of a draft constitution encompassing the results of the deliberation up to that point.  Subsequently, on August 6, 1787, the Committee of Detail submitted its document, which was later amended by the Committee of Style—tasked with producing the final draft.  It is important to note that these two drafts contained “substantial differences.”  See Report of the Committee of Detail (Top Treasure): American Treasures of the Library of Congress, Libr. Cong., https://www.loc.gov/exhibits/treasures/trt047.html (last visited Apr. 13, 2017); see also Rotunda & Nowak, supra note 7, at § 3.1 Introduction (The Committee on Detail “was to draft specific constitutional provisions based on the proposals sent to it by the general convention.”).

[16] Rotunda & Nowak, supra note 7.

[17] Id.

[18] Id.