Disclaimer: I originally wrote this article the second week of September, right when the Syrian crisis was dominating news headlines and generating considerable debate and tension through the nation. I’ve put off publishing it until now for three reasons: (1) I hadn’t finished the last section and due to the start-up of the semester, I had other work to do; (2) I wanted to see how the conflict and possible U.S. involvement would unfold; and (3) I wanted to allow myself time to reflect on my words so that I didn’t say anything that was too hurried or brash.
The Syrian civil war began in March 2011 and has been raging for over two years. Most Americans have been aware that the conflict was going on, but until recently little attention or public debate was focused upon it. However, a little over three weeks ago [read: 7 weeks now], on August 21, there was reportedly a chemical attack upon the Syrian people and rebel groups by the Assad regime.  Not only was this important because chemical weapons were employed, but because in August 2012 the White House had declared the use of chemical weapons a “red line” which if crossed by anyone involved in the conflict would result in severe consequences.  The unfolding of events have now drawn the U.S. sharply into this conflict as President Obama weighs the possibility of military involvement.
Constitutional Presidential War Powers
The focus of this article regards the role and power the President of the United States has in declaring and waging war. This has not been the subject of the majority of the debates in this country over the United States’ role in the Syrian conflict. Instead, the debate has centered on the philosophy and execution of U.S. foreign policy (intervention, non-intervention, isolation; the role of the U.N. and international community, etc.). This is an entirely appropriate debate, but beyond the purview of this article. I am seeking to draw people’s attention to another issue, one I consider to be equally important and one that determines our foreign policy implementation: the authority of executive branch war powers and the subtle abuse of constitutional authority and limits. Unlike a sovereign or dictator, the President does not have the power to unilaterally declare war whenever he feels like it and upon whomever he wishes. The Constitution is explicitly clear about who has the power to do that:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies…To provide and maintain a Navy. (Art. 1, § 8)
This seems rather self-explanatory, does it not? If the writers of the Constitution had wanted to invest the executive branch with this power, they would have included these words (or something similar) in Article 2. Obviously this power belongs to Congress and Congress alone. Why? There are three main reasons. First, although the power to declare war and the power to tax in order to to raise an army are distinct from each other, they are fundamentally related. A country simply cannot (or would not) declare war if they did not first have a means (military) by which to wage that war. Under the Articles of Confederation (1777-1789), Congress did not have power to tax the States in order to raise and maintain an army. This left our nascent Republic very weak during the first years of the Revolutionary War as America was unable to fight effectively – and this almost cost us victory and our freedom from Great Britain. During this time the Constitutional Congress (working mostly out of Philadelphia) assumed the role and task or raising and maintaining an army to fight the Red Coats.  This responsibility was then carried over to the Congress in the current Constitution that replaced the Articles of Confederation, except this time Congress was given power to not only declare war but also levy taxes against the States to raise and maintain an appropriate army (even during peace time). (Notice that the quote above giving Congress the power to declare war is subsumed under its power to collect taxes). 
Second, Congress was given this right in order to prevent the various States from raising their own armies and either waging war against each other, or unilaterally declaring war on other nations. The intention was that if the United States was going to go to war it would be a joint effort with each State contributing money, manpower, and equipment all directed by Congress. Third, Congress was given this power in order to prevent a single individual – the President – from rashly and autonomously committing the U.S., her resources, and citizens in conflicts with other countries. Both the Founders and the common colonial citizen were quite wary of becoming entangled in alliances with European powers that would then pull the country into wars and conflicts that it had no stake in and little chance of extrication from. This has led many today to adopt a foreign policy of non-intervention (distinct from isolationism) that refuses to believe that the United States must assume a policeman-of-the-world role in international affairs. As Alexander Hamilton declared,
The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera [Divide and command] must be the motto of every nation that either hates or fears us. 
It is clear that Congress alone holds not only the power to declare war, but also the power to organize the war effort and tax the States (and thus the people) in order to build an appropriate army that would successfully defend the country and win victories in conflicts that are undertaken.
Logically, the next question that arises is: What is the role of the President in all of this? There are two main roles the President plays. First, per Article 2, § 2,
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
The President is the commander of the armed forces. Once war has been declared, he calls all the final shots. Of course, this does not exclude the President from taking advice with his military commanders, but the reality is that the buck stops with him. However, notice that the President’s role as Commander in Chief does not begin until the military is actually called into service; namely, war has been declared by Congress and the appropriate raising of funds and training of the military has been completed. Second, traditionally it has been recognized that the President of the United States does have the reserved constitutional power to defend the United States against aggressive attacks that require immediate action. A reserved constitutional power is one that is not explicitly numerated, but which has been assigned to a branch in our government out of necessity (an example of reserved power being granted to the States can be found in the Tenth Amendment). It is debatable whether this is a legitimate use of federal power. However, beyond the immediate debate over reserved power, I think we can all agree that the President taking steps to defend our country from imminent attack is quite different from declaring aggressive wars in the name of “national interests” abroad. The first is defensive, the second offensive; and a nation need not declare war in order to defend itself.
Finally, we could trace the history of Presidential war powers and unilateral action taken on military conflicts throughout our history; however, I have already said quite a bit that is sufficient to establish the defining roles (and the purpose of those roles) of the legislative and executive branches of our government. Needless to say, there have been many abuses of these powers in our nations history, along with strong legislation attempting to curb those abuses. 
A Twisted War Powers Narrative
On August 21, 2013 President Obama gave a briefing on the White House lawn describing the current state of the Syrian war and the use of chemical weapons. This was his attempt to convince us – and the world – that U.S. military intervention was necessary (video here). Toward the beginning of his speech his says the following:
After careful deliberation I have decided that the United States should take military action against Syrian regime targets. (1:48-1:56)
Is this the President’s decision to make? No. After what I have outline above, the President of the United States simply does not have the authority to make this decision. Yet he assumes this power and does so anyway. He goes on to explain that this would entail limited military action, without putting “boots on the ground.” So what? The extent of purported U.S. military intervention does nothing to redefine the President’s powers in military-related situations. The moral imperatives involved, the necessity of holding a brutal regime accountable, or the military expediency and readiness of U.S. Armed Forces does nothing to change the President’s constitutional authority and limits.
However, it gets worse. President Obama goes on to say,
Having made my decision as Commander in Chief based on what I am convinced is our national security interests, I’m also mindful that I am the President of the world’s oldest constitutional democracy. I’ve long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people. That’s why I’ve made a second decision: I will seek authorization for the use of force from the American people’s representatives in Congress…And all of us should be accountable as we move forward, and that can only be accomplished with a vote (2:47-3:23; 3:56-4:02)
Yet while I believe I have the authority to carry out this military action without specific Congressional authorization, I know that the country will be stronger if we take this course and our actions will be more effective. We should have this debate. Cause the issues are too big for business as usual. (4:40-4:59)
While I applaud the President’s decision to take this matter to Congress (as he is required to do by law), it is clear that he is doing so for the wrong reasons. In fact, with these few words, our President has completely twisted and defaced our Constitution and the role of the executive branch. He has assumed and made a claim to a right of decision he does not have. In addition, he is seeking credit for this decision as if it is a noble, courageous, and voluntary act on his part, when in fact he is required by law to take this issue to Congress. By justifying his right to unilateral military action due to “national security interests” (whatever these may be) and his role as Commander in Chief (another distortion), he construes his decision to go to Congress as being the hallmark of a responsible, worthy leader. Yet nothing could be farther from the truth.  We know from U.S. military intervention in the Libyan conflict that President Obama sees no problem with taking military action either by himself without Congressional approval or with the backing of the U.N. Security Council. Unilateral action and assertion of executive power is what is “business as usual” for our President. Unfortunately, the only way to make what should be business as usual (constitutional law) look extraordinary and virtuous, is if there has been a long series of previous abuses which the American people have come to expect from our leaders.
A Cincinnatus Charlatan
One might try to excuse the President by claiming that he is simply following the precedent set by previous presidents. However, this is irrelevant. Illegal and unconstitutional precedents don’t make wrongs right; in other words, once an illegal precedent, always an illegal precedent (unless, of course, the law is changed; in this case it hasn’t been). If presidents from our history have unilaterally declared war and taken our nation, our service men and women, and all our resources into conflict without Congress’s approval, they have done so only by usurping constitutional power from the legislative branch. This is illegal and should not be tolerated.
Why have I called President Obama a “Cincinnatus Charlatan”? During the early years of the Roman Republic (753 BC – 27 BC) , a Roman statesman, Lucius Quinctius Cincinnatus (519 BC – 430 BC), was called upon to serve as consul in 460 BC (two consuls were elected each year to serve a one-year term). Two years later, in 458 BC, as Rome faced defeat at the hands of her enemies, Cincinnatus was again called upon to act as Dictator (also known as “Master of the People”) for six months. In this role he assumed total control over the Roman army and with the aid of his second in command, Lucius Tarquitius, he led Rome to victory at the Battle of Mons Algidus. Once victory was assured, Cincinnatus renounced his dictatorship and returned home to work his farm. This was a remarkable act of virtue and service since he could have continued as Dictator for another 5 1/2 months (his dictatorship only lasted for 16 days). Indeed, he might have even attempted to retain his dictatorship for longer. For such a display of humble leadership and civic virtue, Cincinnatus was celebrated throughout Roman history as an outstanding example of the kind of unselfish, virtuous leadership that was expected of Roman statesmen.
Unfortunately, the same cannot be said of President Obama and his handling of the Syrian conflict. Although I cannot claim to know absolutely the thoughts or motives of the President, it seems highly dubious that he would not know the constitutional limits placed on his office. In fact, this is all the more implausible because the President himself taught constitutional law for twelve years when he worked at the University of Chicago Law School.  In addition, in a 2007 interview with then Senator Obama about the possibility of the U.S. bombing Iran, Obama said that “the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”  Despite what President Obama would have us believe, the Syrian conflict does not in any way constitute an “actual or imminent threat” to our nation. While what has occurred is obviously tragic for the Syrian people, the United States is not under attack by the Assad regime.
Not only is the Constitution explicitly clear in delegating war powers, but U.S. history has also proven that Congress normally ascribed to itself the power to declare war and raise an army (and, consequently, gets quite upset when this power is usurped). For our President to address the American people and the rest of the world as if it were a settled and known fact that he alone holds the power to go to war, this is not only false but deceptive. And then, adding insult to injury, he portrays his act of going to Congress as being a virtuous and charitable measure on his part that we are suppose to applaud and for which he is expected to receive credit. This is the exact opposite of the attitude and behavior of Cincinnatus; yet our President wants to be held in high esteem.
We must not allow ourselves to get pulled into this trap. A well-crafted web of words cloaked in rhetorical flourish and delivered with impressive soberness does not change the facts of the matter. And the facts are that our President has twisted the meaning of our Constitution, usurped the power and authority of the legislative branch, has deceptively presented his false narrative to the America people as being true and justified, and has attempted to justify his actions because of external needs and pressures, all while trying to claim the moral and legal high ground by persuading us that he acting humbly and virtuously.
 It is difficult to determine who was actually behind the chemical attacks. It is entirely plausible that they were used by the Syrian rebels on civilians in order to frame the Syrian government and pull other nations into the war. It is not the purpose of this article to explore such allegations or possibilities.
 Again, we could debate the merits or wisdom of any presidential administration laying down such a red line. Many have since questioned President Obama’s prudence in giving such an ultimatum, since it would inevitably draw the United States into conflict and risk U.S. credibility abroad if we failed to act. I’m not purporting here to give an analysis of the administration’s stance in this area.
 For more information on the dilapidated and sad state of the army serving under George Washington’s leadership, see 1776 by David McCullough. McCullough documents time and again how Washington pleaded with the Constitutional Congress to somehow come up with the funds to keep men from deserting the army.
 James Madison clearly explains the logic and necessity of this in Federalist No. 41. Alexander Hamilton also touches on this issue in Federalist No. 25.
 Hamilton, Federalist No. 7.
 For example, the War Powers Resolution of 1973.
 In addition to the President, his cabinet members have reiterated the same line about the President’s authority to take military action alone if need be. This includes Vice President Biden, Secretary of State John Kerry, and others. [On a side note, this reveals Vice President Biden’s hypocrisy since in a 2007 interview with Chris Mathews he said that any Bush administration strike on Iran that did not have congressional approval would be an impeachable offense (article). Yet now he backs President Obama’s right to do the same.]
 753 BC is the traditional date given for the founding of Rome. Some historians date the actual beginning of the Republic to 510/509 BC when a revolution known as the “Expulsion of the Kings” overthrew of the monarchy.
 The interview can be found here. See question 2. It seems to me that this interview reveals not only the hypocrisy of our President, but also that fact that he currently knows well and good what the Constitution says about his presidential war powers.