By Elad Hakim
President Trump recently authorized a raid in Syria in which ISIS leader Abu Bakr al-Baghdadi was killed. Rather than commending the president, House Speaker Nancy Pelosi (D-Calif.) and other congressional Democrats cried foul and blasted the president for failing to notify them of the planned raid prior to its execution.
While it’s not unusual for congressional Democrats to criticize the president and his decisions (regardless of the outcome), their position in this instance could very well be incorrect.
Immediately following the president’s announcement of the successful raid, Pelosi issued a statement in which she stated: “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.”
Article II, Section 2 of the Constitution provides that the president is the commander in chief of the armed forces. As such, it would appear that the president has the responsibility to direct the armed forces into battle. However, Article I, Section 8, Clause 11 of the Constitution gives Congress the authority to declare war, among other powers.
Given the apparent conflict between these provisions, there has been some confusion as to when the president may act unilaterally and when Congress must first be consulted when it comes to the use of the nation’s military.
Adding to the confusion is the War Powers Act. As reported in Vox:
“The War Powers Act required the president to notify Congress when he got the US involved in ‘hostilities’ — and then set a 60- to 90-day clock for Congress to approve that action, by passing an authorization of use of military force, or for the president to withdraw from the conflict. It also allowed Congress to pass a concurrent resolution that would force the executive branch to withdraw from any conflict it hasn’t already approved.”
As such, based upon these various constitutional provisions and/or laws, the president is in charge of the armed forces, Congress has the power to declare war, and the president must notify Congress when he involved the United States in hostilities (pursuant to the War Powers Act).
In light of the foregoing, Pelosi’s argument initially appears fairly strong. What weakens her position, however, is the argument that the recent raid was not a declaration of war and did not constitute “hostilities,” as set forth by the War Powers Act and/or Article I.
In an article written by Marty Lederman, a professor at Georgetown University Law Center, Lederman states:
“The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met: (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion).”
In other words, the president can act unilaterally if the use of force serves significant national interests and is relatively limited in scope and duration. In this case, the raid in Syria specifically targeted the leader of a terror group who had threatened the United States and was responsible for the death of many innocent people around the world (including in the United States). The raid was also very limited in scope and duration, and no U.S. servicemen were injured or killed in the operation.
The use of military force for limited purposes and for short durations has been implemented by previous administrations. For example, in 1981, former President Ronald Reagan deployed military personnel to El Salvador without prior congressional approval. Former President Bill Clinton challenged the War Powers Act in 1999 with regard to his bombing campaign in Kosovo, which exceeded the 60-day limit set forth in the Act.
Finally, former President Barack Obama utilized military force in Libya without prior congressional authority. In doing so, Obama relied on a written opinion by the Office of Legal Counsel (OLC), which opined that the president could use military action as commander-in-chief for national security and foreign military affairs.
Interestingly, the OLC opinion further stated that the War Powers Act implied that unilateral action was permissible because it required the president to notify Congress within 48 hours of deploying U.S. forces into hostilities (the 48 hour window would not be necessary if congressional approval was required ahead of time).
While Pelosi and some congressional Democrats will continue to complain about the president’s failure to notify them of the intended raid until after the fact, their complaints may fall on deaf ears. The debate between the president’s Article II power(s) and the powers granted to Congress under Article I will likely continue, yet the president’s decision in this case appears to fall within his powers under Article II (and past precedent). The raid was directly related to the nation’s national security/interests, limited in scope, and short in duration. It was not a declaration of war.
The president wanted to keep the raid secret so as to avoid leaks and protect military personnel. He succeeded on all fronts.
Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker, and other online publications.