Does Obama Have the Constitutional Power to Go to War in Syria?

By:  Thomas R. Eddlem
Does Obama Have the Constitutional Power to Go to War in Syria?

The Washington Post's neoconservative columnist Jennifer Rubin appears to be on the warpath against members of Congress skeptical of Syrian intervention, especially congressmen who assert that it's beyond the power of President Obama to initiate the war.

Rubin wrote in an August 28 column:

As for Congress, Rand Paul again demonstrates his misunderstanding of the Constitution. A declaration of war requires congressional action; a minimal strike of the sort the president contemplates is surely within the Article 1 powers of the commander in chief. Thomas Jefferson thought so.

Actually, Article 1 of the Constitution outlines the powers of Congress; the powers of the president are outlined in Article 2.

Over her "Thomas Jefferson thought so" remark, Rubin provided a hyperlink to a Library of Congress webpage that summarizes the American quasi-war against the Barbary pirates. But the Library of Congress webpage contained little information about how hostilities commenced. If it had, Rubin might have noticed that she committed a second error in constitutional and historical analysis. The link provided didn't prove the sweeping historical assertion that the Xena-Warrior Princess of the neoconservative Right sought to prove. Quite the opposite was true.

The reality is that Jefferson first asked Congress for permission to engage in offensive military action against the Dey of Tripoli, and he received that permission by an act of Congress before proceeding with the war.

Jefferson did, however, dispatch a squadron of naval frigates to the Mediterranean to protect American shipping before receiving congressional approval of any offensive operations. But Jefferson had his Secretary of Navy, Robert Smith, give explicit instructions to the commander to preserve peace as much as possible and to wage only defensive actions to protect American shipping from attacks. Smith wrote on May 30, 1801: “It is thought probably that a small squadron of well appointed frigates appearing before their ports will have a tendency to prevent their breaking the peace which has been made, and which has subsisted for some years, between them and the United States.... But should you find, on your arrival at Gibraltar, that all the Barbary powers have declared war against the U. States, you will then distribute your force in such manner, as your judgment shall direct, so as best to protect our commerce and chastise their insolence — by sinking, burning or destroying their ships and vessels wherever you shall find them.”

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