Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Sunday, October 27, 2019

Did Trump Have Authority for Attack on ISIS Compound?

            The topic of discussion for this Constitution Monday concerns when the President, acting as Commander-in-Chief, must notify Congress of military action and when he does not. President Donald Trump authorized a military attack on ISIS about a week ago, and the attack took place yesterday. ISIS leader Abu Bakr al-Baghdadi was killed in a surprise attack on his compound, and Trump did not notify congressional leaders until the attack was over and done. He said that he did not inform Pelosi because he “wanted to make sure this secret was kept.” This is an insult to the Speaker of the House, but I can understand Trump’s reasoning with the political scene as it is.

            Trump notified Russia of the death of al-Baghdadi before he notified Speaker of the House Nancy Pelosi, and she is a little bent out of shape about it. “The House must be briefed on this raid, which the Russians but not top congressional leadership were notified of in advance, and on the administration’s overall strategy in the region…. Our military and allies deserve strong, smart and strategic leadership from Washington.” 

            The military attack was a success, and the ISIS leader was killed. Yet, Democrats cannot bring themselves to acknowledge that it is a good thing that happened. My question is, will Democrats use this military attack as another reason to attempt to impeach Trump? What does the Constitution have to say about military actions?

            The U.S Constitution divides the responsibilities of war between the Executive Branch and the Legislative Branch. Even though Congress has sole authority to declare war (Article I, Section 8, Clause 11), the President has some authority to direct military matters without consulting Congress. John Yoo, Professor of Law at University of California-Berkley, wrote the following in a chapter about the Commander-in-Chief for The Heritage Guide for the Constitution.

Few constitutional issues have been so consistently and heatedly debated by legal scholars                   and politicians in recent years as the distribution of war powers between Congress and the                   President. As a matter of history and policy, it is generally accepted that the executive takes                 the lead in the actual conduct of war…. At the same time, the Founders plainly intended to                   establish congressional checks on the executive’s war power. Between these guideposts is a                 question of considerable importance: Does the Constitution require the President to obtain                   specific authorization from Congress before initiating hostilities?

Article II, Section 1, Clause 1, vests the entirety of the “executive Power” in a single person, the President of the United States. By contrast, under Article I Congress enjoys only those legislative powers “herein granted.” Scholars generally agree that this vesting of executive power confers upon the President broad authority to engage in foreign relations, including war, except in those areas in which the Constitution places authority in Congress. The debate, then, is over the extent of Congress’s constitutional authority to check the President in matters of war.

The presumption of presidential initiative in war established by these two provisions of Article II appears to be bolstered by other constitutional provisions. Article I, Section 10, Clause 3, expressly prohibits states from “engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay” unless they have obtained the “Consent of Congress.” By contrast, no such limitation on engagement in war by the President can be found in Article II, Although Article II expressly authorizes the President to engage in other foreign relations powers (such as the making of treaties and the appointment of ambassadors) only with the consent of Congress, it imposes no such check with respect to the use of military force.

            It appears that the President has authority to initiate military attacks -- such as the one that took place over the weekend in Syria -- and can use the funding available to the executive branch, which includes the military. However, Congress controls the purse strings of the nation and would control whether the Commander-in-Chief could wage a longer military offensive. The President has authority to repel any invasion, but Congress has authority to declare war.

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