TAMPA, August 29, 2013 – The British Parliament is debating the U.K.’s response to an alleged chemical weapons attack by the Syrian government against rebels and civilians. This prompted Sen. Ted Cruz of Texas to tweet a picture juxtaposing the ongoing debate in Parliament with the empty U.S. Congress building.
Cruz and others have expressed the opinion that President Obama cannot take military action against Syria without consulting Congress first.
They’re wrong. Congress doesn’t have the power to start a war with Syria, either, under present circumstances.
Most people misunderstand the declaration of war power as “permission” to start a war. It’s not.
The Constitution grants Congress the power to declare that a state of war already exists. This can only be true if the nation in question has committed overt acts of war against the United States.
This is supported by each and every declaration of war in U.S. history. Each declaration has followed the same format.
1. Congress cites the overt acts of war committed by the nation in question against the United States.
2. It recognizes the existence of the war because of those overt acts.
3. It directs the president to utilize the military to end the war.
The process is somewhat analogous to a criminal trial. The president “makes his case” to Congress that certain actions by a foreign nation amount to acts of war. Congress then deliberates, renders its verdict and passes sentence. The president is directed to execute the sentence.
When James Polk asked Congress to declare war on Mexico in 1846, he said,
“But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced, and that the two nations are now at war.
As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights, and the interests of our country.
In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prosecuting the war with vigor, and thus hastening the restoration of peace.”
After deliberating, Congress issued the following declaration of war,
“Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States: Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termination…”
Note the italicized words. The state of war already exists because of the act of the Republic of Mexico.
Most people remember FDR’s Pearl Harbor speech during which he rattled off the acts of war committed by Japan. “Last night, Japanese forces attacked Wake Island. Last night, Japanese forces attacked Midway Island, etc.” Roosevelt concluded,
“I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December seventh, a state of war has existed between the United States and the Japanese Empire.”
The framers of the Constitution intended that the president would never initiate planned military action until this process took place. Yes, the president could deploy the military if the British or Spanish were discovered marching through Maryland, a very real possibility at the time.
Otherwise, acts of war had to be committed against the United States before the president directed a military response.
Syria’s government may or may not have used chemical weapons against its own people. It has not committed any acts of war against the United States. Therefore, there is no basis upon which to declare a state of war between Syria and the United States.
The constitution assumes that the only justification to utilize U.S. military resources is to defend U.S. citizens after another nation has initiated a state of war. The only exception is to defend a nation with whom the United States has signed a treaty establishing one of those entangling alliances the founders told us to avoid.
The Syrian conflict meets none of those requirements. Neither Congress nor the president have any constitutional authority to attack.
Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.