He sees no reason for President Obama to go to Congress to authorize action against Syria, and argues that history gives plenty of examples of the military being used without such approval. He uses fundamental text from the ratification era to argue that the framers of the Constitution saw a limited role for the legislature in conducting the military:
Throughout our history, neither presidents nor Congresses have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad.
We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II.
Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates and Russian revolutionaries, to fight North Korean and Chinese communists in Korea, to engineer regime changes in South and Central America, and to prevent human rights disasters in the Balkans.
A major point he makes is that war is different and the checks and balances that work during periods of peace do not work during periods of war when such checks may limit the ability of the commander in chief to effectively command the military. He also states that while the revolutionary war may have been fought against a monarch, the Constitution was written in order to create an executive branch specifically designed to act forcefully in times of war:
It is true that the revolutionaries rejected the royal prerogative, created weak state governors, and turned a skeptical eye toward federal power. Rejecting these failed experiments, however, the Framers restored an independent, unified chief executive with its own powers in national security and foreign affairs.
The most important of the president’s powers are commander-in-chief and chief executive.
As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”
Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy, and dispatch.” In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. . . It is essential to the protection of the community against foreign attacks.”
The Framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation.
Instead, they can demand swift, decisive action, sometimes under pressured or even emergency circumstances, that are best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements.
Congress is too large and unwieldy to take the swift and decisive action required in wartime.
It's worth a full read. We'll try to make sense of these and counter arguments in class.
