Congress’ Power to Authorize Limited Hostilities

Does Congress have constitutional power to authorize limited strikes on Syria?  In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:

… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.

I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.

The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers.  From the abstract:

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war. 

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Sheriff Mack to Missouri Sheriffs: Support the 2nd Amendment Preservation Act!

CSPOA/Sheriff Mack Press Release:  Dated Sept. 10, 2013

Today the CSPOA learned that the Missouri Sheriff’s Association “Board” voted to oppose a strong and correct piece of legislation (HB436) in an effort to override the Governor’s veto of a bill already passed by a substantial majority of MO legislators. The MO legislature was absolutely correct in doing so and was actually doing their job to keep unlawful federal gun control statutes off the backs of Missourians!

James Madison said, “We can safely rely on the disposition of State Legislatures to erect barriers against the encroachments of the national authority.” 

We should be able to depend on Sheriffs, Chiefs of Police, County Commissioners, and all other local officials to do the same; erect barriers against tyranny and DC corruption. The federal government is out of control and local officials have no obligation to go along with it, quite the contrary. If we do oppose federal usurpations then the feds might just retaliate by cutting federal funding for local programs. What does that make local leaders who compromise liberty to keep federal grants coming in? 

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To Intervene or Not to Intervene?

Well, here we go again.

Our Peace President is ready to bomb Syria in submission. They have crossed a “red line” that he told them not to, but recanted and said that the world drew the red line. So, he wants to send a couple hundred Tomahawk TLAMs in there at $1.5 million each to do – just what? We don’t know. Even as he makes his case to Congress, he does not know. To punish Assad for using chemical weapons on his people, I guess. He must be punished.

Or is it a shot across the bow?

Think back to Libya. The unconstitutional intervention at that time was to take out their air force, artillery and provide air support for the civilian rebels that were getting slaughtered. It was definitely not for regime change. But then we bombed every palace, house, tent and tree that we thought Ghaddafi was possibly hiding under. We all remember the gripping scene as they dragged him from that culvert, beating and kicking him before blowing his head off. Humanitarian missions don’t all end good you know.

Well, lets get back to the red line. Two days before this chemical attack, UN Weapons Inspectors arrived in Syria. They were there to investigate a previous chemical attack in March. The Russians and the UN say that the evidence points to the rebels being behind that attack.

Hold the phone! I thought John Kerry said that there were no questions. This is certainly enough for me to hold off a missile attack on a sovereign nation. Russia has provided the United States with other intelligence that points to the rebels. In the spirit of the reset, we have discarded that intelligence at the same time, refusing to share any of our intelligence with the Russian government. That’s right, as the Russians and Chinese send warships of their own to the area, we refuse to share intelligence that could erase the red line.

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