The Trump Administration’s Bogus War Powers Claim

The Trump administration’s legal defense for the illegal attacks on Syria is as weak as can be

More than a year after President Trump first ordered the American military to bomb Syrian government forces as punishment for using chemical weapons, the Justice Department has claimed that he wields broad constitutional power to order such limited acts of warfare without congressional approval.

In a 22-page legal opinion disclosed late Thursday, the Justice Department’s Office of Legal Counsel declared that Mr. Trump could lawfully and unilaterally direct airstrikes targeting Syria installations because he determined that doing so would be in the national interest, and because the attack would carry little risk of escalation [bold mine-DL]

The administration’s interpretation is completely wrong on the law. The president has no authority to order an attack against a government that has not attacked the U.S. or U.S. forces, and no amount of hand-waving about Article II powers can change this. If the administration’s understanding of war powers became the accepted one, future presidents would have an excuse to launch airstrikes against any country they wanted to attack so long as they cloaked the aggression in “national interest” rhetoric and the targeted country lacked the ability to fight back. In short, the claim is that the president can order acts of aggressive war against other states at will if he deems it necessary as long as he judges that there won’t be serious retaliation. No one knows when a military intervention begins that it won’t lead to escalation, and even if that could be known in advance that wouldn’t give the president the authority to do this on his own

The Trump administration’s position is similar to Obama administration argument in support of the Libyan war that U.S. forces had not been introduced into hostilities if the other side could not shoot at them, and it echoes this administration’s argument for why authorization isn’t needed for U.S. support for the Saudi-led war on Yemen. Like both of those, this argument doesn’t withstand the slightest scrutiny. U.S. forces were involved in hostilities against the Syrian government this spring and the year before that, and they are part on an ongoing bombing campaign in Yemen that they are helping to make possible. In all of these cases, including the Libyan intervention, U.S. forces were introduced into hostilities without Congressional authorization by presidents that simply ignored the requirements of the Constitution. Obama set the awful precedents, and now Trump is adding to them

Presidents do not have inherent authority to initiate hostilities against another state, and under the U.N. Charter the U.S. isn’t permitted to do this in any case. Members of Congress need to reject the administration’s arguments and insist on their role in matters of war