News Column

Obama Has Legal Authority to Attack Syria

September 4, 2013
cruise missile
USS Stout firing a cruise missile (file photo)

Even as House Speaker John Boehner said he would support a military attack against Syria for its apparent use of chemical weapons, President Barack Obama appears to have the legal authority to order strikes without congressional approval.

Emerging from a White House meeting yesterday with Obama and congressional leaders from both parties, Boehner, R-West Chester, predicted the House would support the president in approving cruise-missile and possible air attacks against the regime of Syrian President Bashar Assad.

"We have enemies around the world that need to understand that we're not going to tolerate this kind of behavior," Boehner said in forceful language. "We also have allies around the world and allies in the region who also need to know that America will be there and stand up when it's necessary."

Boehner's announcement -- combined with Sen. John McCain's decision on Sunday to back an attack on Syria -- increases the chances that Congress will approve a resolution when both chambers take up the measure next week.

Michael Steel, a Boehner spokesman, acknowledged it remains "an uphill battle to pass a resolution." But even if one house rejects the resolution, Obama has made it clear that under the Constitution, he has "the authority to carry out this military action."

Presidents since the dawn of the republic have sent U.S. troops abroad scores of times without a vote by Congress, ranging from President William McKinley, who in 1900 dispatched troops to China to deal with the Boxer Rebellion, to President Harry Truman, who in 1950 used U.S. forces to repel a North Korean invasion of South Korea.

By contrast, Congress has declared war only 11 times, including against Spain in 1898, Germany in 1917 and Japan and Germany in 1941. On a handful of other occasions -- such as the 1991 and 2003 attacks on Iraq -- Congress authorized military action without a formal declaration of war.

"As a matter of domestic law, it's pretty clear he's got that authority and that has been exercised by a large number of presidents in the past," said William Howard Taft IV, former legal adviser to the State Department, grandson of a former president and cousin of former Gov. Bob Taft.

Although the Constitution asserts that Congress has the power to declare war, it also declares that the president is the commander-in-chief of the armed forces, prompting John Quigley, a professor of international law at Ohio State University, to say "it's very muddled" about a president's power.

Quigley said the president is commander-in-chief, but he contends that "means you command them" after war is authorized by Congress. With Syria, Quigley said, "this is a bit of a stretch" to argue the president can launch on his own an attack "which doesn't involve any threat to the United States."

Exasperated in 1973 because four presidents sent troops to Vietnam without a declaration of war, Congress -- over the veto of President Richard Nixon -- approved the War Powers Resolution. The measure asserted that a president can send troops into a war zone, but after 60 days he or she must withdraw those forces unless congressional approval is obtained.

No president since Nixon has acknowledged that the War Powers Resolution is constitutional, and Quigley said that if Obama decides to attack Syria, "he probably would not be deterred by concerns" for the measure.

Boehner's support is crucial for the White House to win House backing for use of force. Although as many as 80 House Republicans are likely to oppose a resolution, Boehner probably could sway the votes of more than 120 other GOP lawmakers.

Among those expected to oppose the resolution is Rep. Mike Turner, R-Dayton, who said yesterday that he "would be incredibly surprised if the House of Representatives passed this resolution."

Before the closed-door meeting with congressional leaders, Obama told reporters that "the military plan that has been developed by the joint chiefs -- and that I believe is appropriate -- is proportional. It is limited. It does not involve boots on the ground. This is not Iraq, and this is not Afghanistan."

Obama said the attacks "will send a clear message not only to the Assad regime but also to other countries that may be interested in testing some of these international norms, that there are consequences."

jtorry@dispatch.com

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(c)2013 The Columbus Dispatch (Columbus, Ohio)

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