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home : opinions : opinions August 20, 2017


4/18/2017 1:17:00 PM
Questioning the constitutionality of Syria bombing
By Dick Sandvik


I was troubled by The Nugget's editorial regarding President Trump's executive decision to bomb Syria. Obviously, any humane person is fundamentally opposed to the use of chemical (or biological) weapons, whether against troops or civilians. (Such a person should, IMHO, feel the same way about the use of barrel bombs, starvation or exile as means of war.)

However, I am concerned about the constitutionality of Trump's action - as well as executive actions of like nature by former presidents, including Obama. I'm not a constitutional law expert, so I did a bit of research into Article I, Section 8. I found this interesting article by Yale law professor Stephen Carter:

http://www.startribune.com/declaration-of-war-is-the-relic-from-a-distant-past/418696513/

The professor didn't say either way whether it is constitutional for presidents to launch a war without a Congressional declaration. Carter did say that the clause has fallen into disuse ever since the early days of the Republic.

However, calling the War Powers Clause "a relic of the past" does not contribute to resolving the issue. Perhaps in the foreseeable future the Supreme Court will be required to provide a definitive ruling.

I don't believe that a Constitutional "originalist" or "strict constructionist" should be pleased with the idea that Article I, Section 8 is a "relic of the past." That term could be applied to many clauses in the Constitution! One can reasonably conclude from the plain language of Article 1, Section 8 that a president cannot take military action against a foreign country without a Declaration of War from Congress. And note that Trump, well before he became a candidate for the presidency, said that President Obama should not undertake an act of war against Syria without Congressional approval.

Of course, over the past many decades, Congress has been quite cowardly vis a vis the War Powers clause. They certainly did not give serious consideration to Obama's request for a declaration or at least a new "Authorization for Use of Military Force (AUMF)" with regard to Syria.

That's why I cannot agree with your conclusion that Trump "did the right thing" in bombing the Syrian air base. Absent Congressional consent, Trump or any future president could decide that any reason provided justification for him or her to "do the right thing." What if Trump decides to make a preemptive strike against North Korea? Or to take further aggressive military action against the Syrian regime? Either decision is fraught with potential massive negative consequences for our country. Decisions of such magnitude should be made only with the consent of the peoples' representatives.

And that takes me to my second quarrel with your editorial. You say that it is "pointless to address the rank hypocrisy..." of the Republicans on the issue of bombing Syria. I believe it is never pointless to address hypocrisy on the part of our elected officials. There is entirely too much hypocrisy in our government, at all levels, and that degrades the credibility of those

officials.

As I stated at the outset, the use of chemical weapons - or biologics, barrel bombs, starvation, and exile - as tools of war is inhumane and should be sanctioned strongly and swiftly. But if our country is to do the sanctioning, it should be through a consensus between the Executive Branch and Congress.









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