Trump recently ordered an airstrike on a Syrian airbase as a retaliation to the chemical attack that took place on Wednesday. Some are claiming that the president went beyond the powers that are bestowed by the constitution upon the executive branch. They argue, that there was no legal basis for such an attack without the authorization of Congress. However, it’s a bit more complicated than that. The U.S. Constitution assigns the power to declare war to Congress and furthermore, the War Powers Resolution of 1973, declares that the introduction of armed forces in areas of hostilities must be done so by a declaration of war, statutory authorization or a national emergency.
But article 2 of the Constitution grants the president the power to defend U.S. national interests. In this case, as Trump administration has argued, the interest was in promoting regional stability. Exactly what kind of power article 2 grants the president is up for debate. I think there needs to be a new authorization for the use of force that clearly defines the powers of Congress and the executive branch in limited and extended use of force in various contexts. But to say that there was no legal basis for the attack is not accurate.
Many constitutional scholars are defending Trump’s actions on the basis of article 2 given that the attack was limited in its scope and that it did not put any U.S. forces at any risk.
What’s also important to note is that presidents before Trump have done the same thing, that is, have conducted military activities using the power granted by the Constitution without a declaration of war. In addition, the War Powers Resolution does not necessarily require the approval of Congress in certain contexts and in the past the lower courts have sided with the executive branch on the issue of use of force. That being said, perhaps this case is different given that the attack was on a country’s military installation rather than some rogue entity. But it seems like even in this case the president has the power to conduct a limited attack given the ambiguity of article 2. As I mentioned earlier, we certainly need to have a more robust authorization use of force bill — this is something we should have done a long time ago.