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In response to Donald Trump’s strikes on Syrian bases last Thursday, many libertarians and libertarian-leaning representatives criticized the action as unconstitutional. For example, Rand Paul stated in an op-ed that “no matter who is president or what their party is, it is my firm belief that the president needs congressional authorization for military action, as required by the Constitution.”
The main response to this was that Trump’s strikes on Syria were not “acts of war,” but “limited strikes.” Therefore, he did not need to seek permission from Congress.
Unfortunately, this response is both illegitimate and absurd. The President needs authorization for limited strikes as well.
We can see this from the earliest of statements after our country’s founding. For example, in 1800, Supreme Court Justice Samuel Chase stated “Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects and in time.”
As historian Tom Woods points out, this was even put to the test in the Supreme Court in the 1804 case Little vs. Barreme. During the Quasi War in the 1790s, President Adams had seized a ship coming from France. Congress, however, had only authorized the seizing of ships going to France. It was thus ruled that President Adams’s directive was illegitimate; his authority did not supercede Congress’s authorization. Under a limited strikes doctrine, such an act would have been allowed.
Beyond those points, the argument is a fountain of absurdity. The Founders specifically were trying to limit presidential authority to go to war on his own. For example, in Federalist 4, John Jay stated:
[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
It makes absolutely no sense for the framers to try to limit the president’s power in starting wars, but let him initiate small-scale strikes wherever he wants. Limited strikes between countries can rapidly devolve into larger wars as they provoke retaliation from the attacked country. In fact, if narrow engagement were allowed, presidents who wanted authorization for a larger war could simply sidestep Congress, launch limited strikes, provoke retaliation, and then Congress would be forced by circumstance. The founders were imperfect, yes, but they weren’t idiots.
Last of all, if proponents of this doctrine were to take it to its logical conclusion, what would they say? Was Pearl Harbor a limited strike, and not an act of war?
As a last-ditch effort, proponents of executive war-making power will point to the 1973 War Powers Resolution, an incoherent mess of a law. But if the law is to be interpreted as its proponents think it should, then it’s unconstitutional. As stated above, the Constitution requires Congressional authorization for war, and a mere law cannot change that balance of power.
It’s true that administration after administration has violated the Constitution by not seeking permission for their interventions. However, consistent originalists will oppose the actions of each president. Donald Trump does not get a free pass on this either.