I was please to hear that President Obama will be seeking congressional authorization to take action against Syria, even though his announcement is accompanied by the claim that he believes he already has the power to attack Syria. Based on Mike Ramsey’s work in this area, I believe that the Constitution’s assignment to Congress of the power to declare war indicates that it is Congress that has the power to initiate wars against other countries, not the President. Moreover, I also believe, as Mike has argued, that an attack on weapon stockpiles of another country would be an act of war.
While Mike’s work on the power to declare war is well known, it should be noted that it was truly pathbreaking, as it explained how a clause that spoke of “declaring war” could operate to govern not simply announcing a war, but initiating a war without an announcement. It is a great example of how the originalist work of the last two decades has taught us about the meaning of our Constitution.
I believe it is desirable that President Obama seek congressional authorization even though it is quite likely that he is doing so only for political cover. In our world, constitutional principles are often followed because of concern about the political consequences. And we can hope that if the constitutional principles are followed often enough, even if only due to political considerations, that they will come be seen as mandatory.