When the president doesn’t need to ask Congress before striking

Last week President Trump ordered US missiles into Syria. And he didn’t ask anyone’s permission to do so. That bothers those, like Sen. Rand Paul, who think Congress should’ve been asked to authorize the strikes.

That kind of thinking is popular with people who think we’ve been involved in too many undeclared wars. And they have a point. But on this one they’re wrong. And they’re wrong if they think that Congress always needs to weigh in before the US military is ordered into action.

The framers of the Constitution understood this. They didn’t like the idea that a president could unilaterally take us to war, but they also knew that sometimes he’d have to do just that. The distinction they had in mind, in 1787, was between offensive and defensive actions, between waging war abroad against a foreign enemy and defending the country at home when it’s attacked.

In 1787, then, Rand Paul would’ve been right. We weren’t invaded by Syria. It was a purely offensive operation.

The offensive-defensive distinction today, however, is unworkable. On the one hand, Congress sometimes should be asked to consider where we’re attacked from abroad. That’s what happened at Pearl Harbor on Dec. 7, 1941, and Congress passed the Declaration of War the next day. It was an invasion, but the need for congressional approval didn’t slow down the war effort. And Congress needed to be pulled in, because the contest would demand so much of America and its families.

On the other hand, there are times we take the fight to the enemy and Congress reasonably need not be consulted. At one time or another, over the past few years, American troops have been posted to hotspots in half the countries of the world. If approval had been required in each case, Congress wouldn’t have had time to do much else.

So let’s look more closely at the kinds of actions that don’t call for a Declaration of War, or constitutionally mandated congressional approval.

The first case is Afghanistan, where we’re supporting a legitimate government against the Taliban. The Taliban enforces a brutal version of Sharia law, has massacred Afghani civilians and denied food relief to a starving population. We’ve stationed troops there for 17 years, and 15,000 soldiers remain. If they left, most people think the government would quickly fall to the Taliban.

Does that call for a Declaration of War by Congress? No: You can’t declare war against a stateless group or ideology — with whom would you sign the peace treaty to bring the war to an end?

The next case is Syria, where we took out the sites that manufacture chemical weapons, without declaring war. In so doing we enforced a red line without embarking on the kind of total war that might remove President Bashar al-Assad from power. We left open the possibility of a diplomatic solution that would amount to less than total victory for each side in that multiparty conflict, one that would be better all around than committing US forces in another land war in Asia.

We should never be restricted to a choice between war and acquiescence, with no room for diplomatic maneuver or targeted strikes in between.

Then there’s Africa, where we have 6,000 troops stationed to assist local forces in their struggle against terrorist groups such as ISIS, Boko Haram and al Qaeda. They’re there to train foreign armies, but they sometimes get caught up in firefights; four US soldiers were killed in Niger last year. We’re putting our soldiers in harm’s way, but this doesn’t call for a Declaration of War.

Fine, say the president’s critics. But he should still seek an authorization for the use of force, as George W. Bush did before the last Iraq war, for each of our countless military campaigns. That would be required under the 1974 War Powers Resolution, which every president since then has ignored as an unconstitutional fetter on executive powers.

But if the president sought such an authorization for our military footprint here, there and everywhere, would that really change anything? Our isolationists like to think it would. I think they’re wrong. Instead, I expect that Congress would approve the exercise in military power, as it has always done in the past and would certainly do for Syria.

If Rand Paul thinks otherwise, I have a simple suggestion: Let him propose a nonbinding motion of no-confidence in the Syrian attack in the Senate. And see where that gets him.

F.H. Buckley is a professor at Scalia Law School and author of “The Republican Workers Party: How the Trump Victory Drove Everyone Crazy, and Why it Was Just What We Needed.”

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