Fecteau: Trump’s War Power; U.S. Military Operations in Syria Are Constitutional

Sunday, April 16, 2017
Matt Fecteau, GoLocalProv Guest MINDSETTER™

Donald Trump
Some concern exists as to whether President Donald Trump needs formal declaration or authorization from Congress to commit to further military action in Syria. I fully support going to Congress to wage war; winning its support is critical to making a war effort a national endeavor. However, this doesn’t necessary mean any further military action needs formal sanction from Congress – like it or not. 

Our founders seemed to have muddled the waters on purpose. The original text of the Constitution said Congress could “make war” which was later changed to “declare war.” Some, including legal scholar Jack Goldsmith, believe this provides the executive branch the flexibility needed to conduct military engagements overseas, no Congressional approval required. 

The U.S. Courts have further cited that wars without formal declaration or authorization are justified. The U.S. courts typically dismiss lawsuits over executive overreach in relation to waging war by citing what is called a political question doctrine – a dispute between the branches of government. A political question arises when not every political avenue has been exhausted (e.g. Congress cut aid to South Vietnam). Another common reason is that the plaintiff "lacks standing" or the plaintiff has something to lose. 

Congress doesn’t need to formally declare war or even authorize military action for the strikes in Syria. Future military strikes are well in line with the presidential prerogative or powers inherent to the executive branch in the Constitution. In fact, since the birth of our Republican, over 100 military actions such as the strikes in Syria were conducted without Congressional declaration or approval. 

In the past, even our founding fathers acted without authorization from Congress. Without specific authorization, President Thomas Jefferson ordered attacks on the Barbary pirates who kept seizing American ships off the coast of North Africa so long as they were “defensive” in nature. 

In the shadow of Vietnam, passed over a veto by President Richard Nixon, Congress attempted to assert (or reassert?) its oversight over the executive branch’s war-making ability with the passage of the War Powers Resolution. The War Powers Resolution set forth a number of key reporting requirements, especially one that says the president cannot use forces for longer than 60 days without a specific authorization or declaration of war and prior consultation. If no formal authorization was passed or declaration declared, Congress has a duty to pass a concurrent resolution ending the war overseas (this has never happened). 

A number of problems exist with the War Powers Resolution. The resolution doesn’t specify when consultation should take place, nor what is considered a full consultation. The resolution also doesn’t specify who the president should consult. In addition, presidents have specifically questioned the Constitutional legitimacy of the War Powers Act. 

Regardless, military intervention continued unabated. President Ronald Reagan ordered a strike on Libya, code-named Operation El Dorado Canyon, in response to its terrorist activity without formal Congressional approval – though he consulted some members of Congress -- and also ordered an invasion of Granada to reestablish democracy in the Caribbean island country, again, with no Congressional or even U.N. approval. President Bill Clinton ordered strikes on Afghanistan and the Sudan after several terrorists’ attacks were planned from those respective areas without Congressional approval or formal U.N. sanction. President Clinton also ordered the military to reestablish democracy in Haiti – no Congressional approval. 

President Barack Obama also asserted his executive privilege in Libya. After the Arab Spring, Libyan dictator Muammar Gaddafi threatened to butcher the people of Benghazi, a city of some 500,000 people. The United States won approval from the U.N. for a no-fly zone, and a limited military intervention, saving countless lives. However, Mr. Obama never received formal Congressional endorsement for the military operation. 

Just as presidents have done in the past, President Trump used his constitutional authority to order the U.S. military to intervene overseas in Syria. Mr. Trump did not go to Congress on Syria like Obama did in 2013, but he already has the inherent latitude as Commander-in-Chief. The Syrian government’s breach of international law obviously makes us all less safe; in a way, he was protecting U.S. interests. 

Some may not like Mr. Trump personally, such as yours truly, but he has the inherent authority as our Commander-In-Chief to commit to additional military action in Syria if he so desires. He has centuries worth of precedent backing him up. If Congress doesn’t like it, cut funding to that respective military operation just like Congress did during the Vietnam War – too easy.   

Matt Fecteau ([email protected]) of Pawtucket, Rhode Island was a Democratic candidate for office in 2014 and 2016. He is a former White House national security intern and Iraq War veteran. Follow him on Twitter @MatthewFecteau

  • Jennifer Duffy

    Cook Report

    "We don't really know what a Trump presidency means for the nation, never mind the smallest state.  One of the unintended consequences of last night's results is that Sen. Jack Reed won't be chairman of the Senate Armed Services Committee.  Chalk that up as a loss for RI."

  • Pam Gencarella

    Head of Ocean State Taxpayers' Association

    "Trump’s win means that his signature issue, illegal immigration, could have a big impact on RI, hopefully reversing our course as a sanctuary state and saving the state taxpayer millions of dollars.  While we agree with his 'repeal and replace' Obamacare stance, we have no idea what that means to the RI debacle known as UHIP.  It is not a stretch to believe that federal funding for this kind of system will be off the table so, will RI be stuck with this massively expensive system that still doesn’t work and that is expected to cost another $124 million to fix?  

    Trump's belief that there is significant fraud in the Food Stamp program and the policies that may come from that belief could have a negative impact on RI's local economy since there are businesses in certain cities that rely heavily on this program, fraud and all. On the upside, we may be able to ditch the UHIP program if there is significantly less need for processing welfare program requests (ie. Medicaid and food stamps) resulting from fewer illegal immigrants and less fraud.  While we are ambivalent about his touted child care policies, if enacted, it may force our legislators to revisit the ever growing state cost of subsidies in this area and possibly reduce the fraud and abuse in this system." 

  • Kay Israel

    Professor at Rhode Island College

    "With a Republican President and Congress, Rhode Island will probably be excluded from the 'fruits of victory."  

    The congressional delegation will be able to vocally make their presence felt, but in the long term it's more symbolic than substantive.  

    For Rhode Island it's a matter of holding on and waiting until '18 or '20 and a surge in Democratic influence."

  • Jennifer Lawless

    Professor at American University

    "The RI congressional delegation just became even less powerful than it was. With unified government, Trump doesn’t need to quell Democrats’ concerns or acquiesce because he’s worried about a Democratically-controlled Senate.

    His appointments will reflect that. His executive orders will affect that. And the conservative policy agenda he puts forward will affect that."

  • Len Lardaro

    Professor at University of Rhode Island

    "Well there's a few things -- because there's not going to be gridlock, that's a big difference if it had been Hillary and a GOP Congress, in which nothing would got done. We'll at least get a half a billion in infrastructure that's going to pass which will have an impact.

    I think you'll see there will be reduced reliance on government nationally -- and that's where we'll stick out like sore thumb. We've relied way too much on government -- and our government is highly inefficient and ineffective.  Maybe, just maybe, in this who cycle of things we might be forced to be small and more efficient for once.

    A couple of other things -- interest rates jumped. The one to follow is the ten year government bond rate -- which is tied to mortgages. It went from 1.7% to 2.05% in one day. The point is -- if the ten year stays high, mortgage rates will start going higher -- and in the short time people will run to re-finance. 

    That's the short term impact -- but then if rates stay hight, that will make mortgages more out of reach. And we just passed a bond issue to limit open space -- housing has limited upside here.
    The next thing -- the Fed Reserve will go ahead with tightening next month. A strong dollar will hurt manufacturing. When the dollar is strong our exports become more expensive overseas. 

    Our goods production sector -- manufacturing and construction -- in the near term will do a little better, but as time goes on will be more limited. But something you won't hear, is there are lags in fiscal policy, of six months to year. So we won't really see the effects until the third our fourth quarter of 2017, going into 2018."

  • Mike Stenhouse

    RI Center for Freedon and Prosperity

    "As the unbelievable turned into reality this morning, it struck me that the presidential election was not really all about Donald Trump and Hillary Clinton. It was about a fed-up people, revolting against a corrupt system - the "beast" - that relentlessly favors insiders. Hillary personified the beast, while Donald personified the slayer.

    Sadly, based on election results in our state, Rhode Island's version of the beast lives on. I fear our political class has not learned the lessons from the Bernie Sanders and Donald Trump movements - and will continue with their government-centric, anti-family, anti-business status quo."



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