[Excerpt] Last week, for the second time since becoming president, President Donald Trump ordered a military strike on Syria without seeking or obtaining authorization from Congress. Both strikes were responsive to chemical-weapons attacks that, American intelligence analysts say, the Syrian government launched against its own people.
Many believe that these forceful responses to horrific war crimes involving banned weapons were morally justified.  But were they constitutional

Greabe, John M

English

UNH Scholars' Repository

University of New HampshireUniversity of New Hampshire Scholars' RepositoryLaw Faculty Scholarship University of New Hampshire – School of LawSpring 4-22-2018The use of military force and the ConstitutionJohn M. GreabeUniversity of New Hampshire School of Law, john.greabe@law.unh.eduFollow this and additional works at: https://scholars.unh.edu/law_facpubPart of the Constitutional Law CommonsThis Editorial is brought to you for free and open access by the University of New Hampshire – School of Law at University of New HampshireScholars' Repository. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of University of New HampshireScholars' Repository. For more information, please contact ellen.phillips@law.unh.edu.Recommended CitationGreabe, John M., "The use of military force and the Constitution" (2018). Concord Monitor. 370.https://scholars.unh.edu/law_facpub/370• -_, �••r:.l•llaJ:TilliiliT:.1 :.....L:..1...1 , su s ce o the need to elevate victims' rights in our state. Why does it matter that a wealthy man from California is fund­ing a lobbyist and PR efforts to pass the amendment? Or that he's doing so in multi­ple states so others don't experience the traumatic aftermath of a family murder as he did? Why aren't the voices of vic­tims being reported when they clearly describe how their cases would have provided more justice and healing if their rights had been respected and enforced? The victim advocacy community, law enforcement and prosecutors have known for decades that stronger enforcement of victims' rights is needed. The Marsy's Law efforts have made work toward that possible. Unfortunately, a joint House com­mittee vqted the bill down, as if they had never heard the victims' stories, and without considering the amend­ments to the bill that Attorney Gen­eral Gordon MacDonald had pre-. ...... _ -! ... __ ..,_ ... _ AP An Indians fan shows a Chief Wahoo sign during the AL Division Serles at Jacobs Field In Cleveland on Oct. 4, 1997. Erie waterfront, and the Siioreway, the main throughway from east to' west through the city. That lighted sign loomed over my life as well, and Chief Wahoo himself was a constant symbol in Cleveland from 1947 until the stadium was de-SEE WAHOO D3 The use of military force and the Constitution JOHN GREABE Constitutional Connections -L ast week, for the second time since becoming president, Presi­dent Donald Trump ordered a military strike on Syria without seek­ing or obtaining authorization from Congress. Both strikes were respon­sive to chemical-weapons attacks that, American intelligence analysts say, the Syrian government launched against its own people. Many believe that these forceful responses to horrific war crimes in­volving banned weapons were morally justified. But were they con­stitutional? The text of the Constitution ap­pears to contemplate congressional and presidential roles in any decision to commit American troops to battle -at least in'circumstances where the use of force is not clearly a matter of self-defense. Article One confers on Congress the power "to "declare War." It also gives Congress the powers to "raise and support Armies"; to "provide and • M � .. ,,1/"4,_-:,,ic\; 1,..."';:' "':-;J> � � -I maintain a Navy"; and to summon "the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Article 'lwo, in contrast, vests the president with the "executive Power," which some read to encompass broad war-making authority. Article 'lwo also states that the president "shall be the Commander in Chief of the Army and Navy of the United States, SEE CONSTITUTION D4 ✓ • 04 CONCORD MONITOR I Sunday, April 22, 2018 FORUM concord monitor.com Many believe that the War Powers Resolution of 1973 is unconstitutional CONSTITUTION FROM D1 and of the Militia of the sev­eral States, when called into the actual Service of the United States." Notwithstanding the Con­stitution's text, presidents. have ordered the use of force without congressional ap­proval - and in circumstances other than clear self-defense -throughout our history. And the practice has become more common in recent years. President Barack Obama did so in Libya; President Bill . Clinton did so in Kosovo; and President Ronald Reagan did so in Grenada, to take but a few of a number of possible examples. Thus, presidential unilateralism in war-making is not a practice adopted only by presidents of a single polit­ical party. Nor are President Trump's strikes on Syria abrupt departures from re­cent norms. In considering the consti­tutionality of a practice, we tend to look first at what the courts have said. But in this context, judicial precedents are unilluminating. That's be­cause the courts have largely rebuffed efforts to obtain Judi­cial determinations of when the Constitution permits the president to order U.S. troops into action without congres­sional approval, and when it does not. In disclaiming a judicial role in overseeing the use of military force, courts have in­voked justiciability principles such as the standing and "po­litical question" doctrines. In matters of war-making, courts have said, they lack both the institutional competence and constitutional authority to use their power of judicial review. But the fact that judicial relief is unavailable does not necessarily render the consti­tutional question academic. For if Congress were inclined to assert its constitutional prerogatives with respect to war-making, there are a host of tangible measures that it could take to enforce its views. Congress could, for exam­ple, formally express disap-proval of any unilateral presi­dential action through a joint -resolution of the Senate and the House of Representatives. Or more concretely, it could withhold. or even cut off mili-­tary funding. And in an ex­treme situation, it could initi­ate impeachment proceedings against a defiant president. So what does Congress think about the president us­ing force without authoriza­tion and in circumstances other than clear self-defense? In recent years, Congress has remained largely supine in the aftermath of military strikes of this sort. Some ar­gue that this congressional in­action should be understood as acquiescence, if not out­right approval. ment's Office of Legal Coun­sel under President George W. Bush. But like the classicalposition, it has not reflectedactual recent practice. (Notethat, notwithstanding thisopinion, President Bush se­cured an AUMF fromCongress before invadingIraq.)The third, middle-ground perspective reflects recent U.S. practice. Lederman de­scribes it as follows: "The president can act uni­laterally if two conditions are met: 1) the use of force must serve significant national in­terests that have historically supported such unilateral ac­tions - of which self-defense and protection of U.S. nation­But in 1973, shortly after the United States withdrew from Vietnam, Congress passed a War Powers Resolu­tion specifying that the presi­dent may only commit troops to military action abroad pur­suant to a declaration of war; statutory authorization; or a national emergency occa­sioned by an attack on the United States, its territories or possessions, or its armed forces. .. als have been the most com­monly invoked; and 2) the op­eration cannot be anticipated to be suijiciently extensive in nature, scope, and duration to constitute a 'war' requiring prior specific co�gresl?ional approval under the Declara­tion of War Clause, a standard that generally will be satisfied only by prolonged and su� stantial military engage­ments, typically involving ex-AP President Donald Trump speaks In the _Dlplomatlc R�ptlon Room of the White House on Aprll 13 In Washington about the United States' mllltary response to Syria's chemical The War Powers Resolu­tion also requires the presi­dent to notify Congress within 48 hours of taking military ac­tion without congressional au­thorization, and to impose a 60-day time limit (with 30 ad­ditional days for withdrawal)on any such commitment totroops without aQ interveningdeclaration of war or statu­tory authorization.Congress has not formally declared war since World War II. It has, however, enacted anumber of statutory autho-weapon attack on April 7. rizations to use military force, AUMFs, for certain specified purposes. Congress's most recent AUMFs - passed by joint resolutions in 2001 and 2002 - authorize the use of force against those responsi­ble for the Sept. 11, 2001, ter­rorist attacks and against Iraq, respectively. Neither would seem to apply to the strikes on the Syrian govern­ment. In any event, the fact that last week's military strike ap­pears to be at odds with the War Powers Resolution does not answer the constitutional question - even if we take that Resolution to continue to re­flect Congress's understand­ing of the Constitution. That's because many believe that the resolution itself is uncon­stitutional. Those who hold this view believe that the Con­stitution should be read to give the president more ex­pansive unilateral wru:-mak­ing authority than the resolu­tion contemplates. And so, as is so often the case, round and round we go on the con­stitutional question. In the end, we probably­can say little more than that there is a range of perspec­tives on when, under the Con­stitution, the president can commit troops to battle with­out congressional authoriza­tion. Constitutional scholar Marty Lederman, writing for the Just Security blog, divides commonly held views on this question into three cate-gories. The first, wh t Lederman calls the "classi al" view, says that the president may act without congressional ap­proval only in th'.ose rare situ­ations where doing so is nec­essary to interdict an attack on the United States or its troops. This view has not car­ried the day with respect to actual practice in recent decades. The second, reflecting the other extreme, holds that the president :,;nay commit-troops, to battle whenever he be­lieves it to be in "the national security interests of the United States." This position was articulated in a 2003 opin­ion on the war in Iraq au­thored by the Justice Depart-posure of U.S. military per­sonnel to significant risk over a substantial period." The debate over the consti­tutionality of uses of military force without congressional approval will remain theoreti­cal unless and until Congress takes steps to assert its per­ceived constitutional preroga­tives irt circumstances where it believes that the president has gone too far. But congres-sional action of this sort does not appear to be forthcoming anytime soon. (John G-reabe teaches con­stitutional klw and reklted subjects at the University of New Hampshire School of Law. He also serves on the board of trustees of the New Hampshire Institute for Civics Education.) (• 

The use of military force and the Constitution

University of New Hampshire

University of New Hampshire 
University of New Hampshire Scholars' Repository 
Law Faculty Scholarship University of New Hampshire – Franklin Pierce School of Law 
Spring 4-22-2018 
The use of military force and the Constitution 
John M. Greabe 
University of New Hampshire School of Law, john.greabe@law.unh.edu 
Follow this and additional works at: https://scholars.unh.edu/law_facpub 
 Part of the Constitutional Law Commons 
Recommended Citation 
Greabe, John M., "The use of military force and the Constitution" (2018). Concord Monitor. 370. 
https://scholars.unh.edu/law_facpub/370 
This Editorial is brought to you for free and open access by the University of New Hampshire – Franklin Pierce 
School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in Law 
Faculty Scholarship by an authorized administrator of University of New Hampshire Scholars' Repository. For more 
information, please contact sue.zago@law.unh.edu. 
• -_, �••r:.l•llaJ:TilliiliT:.1 
:.....L:..1...1 , su s ce o 
the need to elevate victims' rights in 
our state. Why does it matter that a 
wealthy man from California is fund­
ing a lobbyist and PR 
efforts to pass the 
amendment? Or that 
he's doing so in multi­
ple states so others 
don't experience the 
traumatic aftermath 
of a family murder as 
he did? Why aren't the voices of vic­
tims being reported when they 
clearly describe how their cases 
would have provided more justice 
and healing if their rights had been 
respected and enforced? 
The victim advocacy community, 
law enforcement and prosecutors 
have known for decades that 
stronger enforcement of victims' 
rights is needed. The Marsy's Law 
efforts have made work toward that 
possible. 
Unfortunately, a joint House com­
mittee vqted the bill down, as if they 
had never heard the victims' stories, 
and without considering the amend­
ments to the bill that Attorney Gen­
eral Gordon MacDonald had pre-
. ...... _ -! ... __ ..,_ ... _ 
AP 
An Indians fan shows a Chief Wahoo sign during the AL Division Serles at Jacobs Field In Cleveland on Oct. 4, 1997. 
Erie waterfront, and the Siioreway, 
the main throughway from east to' 
west through the city. 
That lighted sign loomed over my 
life as well, and Chief Wahoo himself 
was a constant symbol in Cleveland 
from 1947 until the stadium was de-
SEE WAHOO D3 
The use of military force and the Constitution 
JOHN GREABE 
Constitutional Connections 
-
L
ast week, for the second time 
since becoming president, Presi­
dent Donald Trump ordered a 
military strike on Syria without seek­
ing or obtaining authorization from 
Congress. Both strikes were respon­
sive to chemical-weapons attacks 
that, American intelligence analysts 
say, the Syrian government launched 
against its own people. 
Many believe that these forceful 
responses to horrific war crimes in­
volving banned weapons were 
morally justified. But were they con­
stitutional? 
The text of the Constitution ap­
pears to contemplate congressional 
and presidential roles in any decision 
to commit American troops to battle -
at least in'circumstances where the 
use of force is not clearly a matter of 
self-defense. 
Article One confers on Congress 
the power "to "declare War." It also 
gives Congress the powers to "raise 
and support Armies"; to "provide and 
• M � .. ,,1/"4,_-:,,ic\; 1,..."';:' "':-;J> � � 
-I 
maintain a Navy"; and to summon 
"the Militia to execute the Laws of 
the Union, suppress Insurrections 
and repel Invasions." 
Article 'lwo, in contrast, vests the 
president with the "executive Power," 
which some read to encompass broad 
war-making authority. Article 'lwo 
also states that the president "shall 
be the Commander in Chief of the 
Army and Navy of the United States, 
SEE CONSTITUTION D4 
✓ 
• 
04 CONCORD MONITOR I Sunday, April 22, 2018 FORUM concord monitor.com 
Many believe that the War Powers Resolution of 1973 is unconstitutional 
CONSTITUTION FROM D1 
and of the Militia of the sev­
eral States, when called into 
the actual Service of the 
United States." 
Notwithstanding the Con­
stitution's text, presidents. 
have ordered the use of force 
without congressional ap­
proval - and in circumstances 
other than clear self-defense -
throughout our history. And 
the practice has become more 
common in recent years. 
President Barack Obama 
did so in Libya; President Bill 
. Clinton did so in Kosovo; and 
President Ronald Reagan did 
so in Grenada, to take but a 
few of a number of possible 
examples. Thus, presidential 
unilateralism in war-making 
is not a practice adopted only 
by presidents of a single polit­
ical party. Nor are President 
Trump's strikes on Syria 
abrupt departures from re­
cent norms. 
In considering the consti­
tutionality of a practice, we 
tend to look first at what the 
courts have said. But in this 
context, judicial precedents 
are unilluminating. That's be­
cause the courts have largely 
rebuffed efforts to obtain Judi­
cial determinations of when 
the Constitution permits the 
president to order U.S. troops 
into action without congres­
sional approval, and when it 
does not. 
In disclaiming a judicial 
role in overseeing the use of 
military force, courts have in­
voked justiciability principles 
such as the standing and "po­
litical question" doctrines. In 
matters of war-making, courts 
have said, they lack both the 
institutional competence and 
constitutional authority to use 
their power of judicial review. 
But the fact that judicial 
relief is unavailable does not 
necessarily render the consti­
tutional question academic. 
For if Congress were inclined 
to assert its constitutional 
prerogatives with respect to 
war-making, there are a host 
of tangible measures that it 
could take to enforce its 
views. 
Congress could, for exam­
ple, formally express disap-
proval of any unilateral presi­
dential action through a joint -
resolution of the Senate and 
the House of Representatives. 
Or more concretely, it could 
withhold. or even cut off mili-­
tary funding. And in an ex­
treme situation, it could initi­
ate impeachment proceedings 
against a defiant president. 
So what does Congress 
think about the president us­
ing force without authoriza­
tion and in circumstances 
other than clear self-defense? 
In recent years, Congress has 
remained largely supine in 
the aftermath of military 
strikes of this sort. Some ar­
gue that this congressional in­
action should be understood 
as acquiescence, if not out­
right approval. 
ment's Office of Legal Coun­
sel under President George 
W. Bush. But like the classical
position, it has not reflected
actual recent practice. (Note
that, notwithstanding this
opinion, President Bush se­
cured an AUMF from
Congress before invading
Iraq.)
The third, middle-ground 
perspective reflects recent 
U.S. practice. Lederman de­
scribes it as follows: 
"The president can act uni­
laterally if two conditions are 
met: 1) the use of force must 
serve significant national in­
terests that have historically 
supported such unilateral ac­
tions - of which self-defense 
and protection of U.S. nation­
But in 1973, shortly after 
the United States withdrew 
from Vietnam, Congress 
passed a War Powers Resolu­
tion specifying that the presi­
dent may only commit troops 
to military action abroad pur­
suant to a declaration of war; 
statutory authorization; or a 
national emergency occa­
sioned by an attack on the 
United States, its territories 
or possessions, or its armed 
forces. 
.. als have been the most com­
monly invoked; and 2) the op­
eration cannot be anticipated 
to be suijiciently extensive in 
nature, scope, and duration to 
constitute a 'war' requiring 
prior specific co�gresl?ional 
approval under the Declara­
tion of War Clause, a standard 
that generally will be satisfied 
only by prolonged and su� 
stantial military engage­
ments, typically involving ex-
AP 
President Donald Trump speaks In the _Dlplomatlc R�ptlon Room of the White House on 
Aprll 13 In Washington about the United States' mllltary response to Syria's chemical 
The War Powers Resolu­
tion also requires the presi­
dent to notify Congress within 
48 hours of taking military ac­
tion without congressional au­
thorization, and to impose a 
60-day time limit (with 30 ad­
ditional days for withdrawal)
on any such commitment to
troops without aQ intervening
declaration of war or statu­
tory authorization.
Congress has not formally 
declared war since World War 
II. It has, however, enacted a
number of statutory autho-
weapon attack on April 7. 
rizations to use military force, 
AUMFs, for certain specified 
purposes. Congress's most 
recent AUMFs - passed by 
joint resolutions in 2001 and 
2002 - authorize the use of 
force against those responsi­
ble for the Sept. 11, 2001, ter­
rorist attacks and against 
Iraq, respectively. Neither 
would seem to apply to the 
strikes on the Syrian govern­
ment. 
In any event, the fact that 
last week's military strike ap­
pears to be at odds with the 
War Powers Resolution does 
not answer the constitutional 
question - even if we take that 
Resolution to continue to re­
flect Congress's understand­
ing of the Constitution. That's 
because many believe that 
the resolution itself is uncon­
stitutional. Those who hold 
this view believe that the Con­
stitution should be read to 
give the president more ex­
pansive unilateral wru:-mak­
ing authority than the resolu­
tion contemplates. And so, as 
is so often the case, round 
and round we go on the con­
stitutional question. 
In the end, we probably­
can say little more than that 
there is a range of perspec­
tives on when, under the Con­
stitution, the president can 
commit troops to battle with­
out congressional authoriza­
tion. Constitutional scholar 
Marty Lederman, writing for 
the Just Security blog, divides 
commonly held views on this 
question into three cate-
gories. 
The first, wh t Lederman 
calls the "classi al" view, says 
that the president may act 
without congressional ap­
proval only in th'.ose rare situ­
ations where doing so is nec­
essary to interdict an attack 
on the United States or its 
troops. This view has not car­
ried the day with respect to 
actual practice in recent 
decades. 
The second, reflecting the 
other extreme, holds that the 
president :,;nay commit-troops, 
to battle whenever he be­
lieves it to be in "the national 
security interests of the 
United States." This position 
was articulated in a 2003 opin­
ion on the war in Iraq au­
thored by the Justice Depart-
posure of U.S. military per­
sonnel to significant risk over 
a substantial period." 
The debate over the consti­
tutionality of uses of military 
force without congressional 
approval will remain theoreti­
cal unless and until Congress 
takes steps to assert its per­
ceived constitutional preroga­
tives irt circumstances where 
it believes that the president 
has gone too far. But congres-
sional action of this sort does 
not appear to be forthcoming 
anytime soon. 
(John G-reabe teaches con­
stitutional klw and reklted 
subjects at the University of 
New Hampshire School of 
Law. He also serves on the 
board of trustees of the New 
Hampshire Institute for 
Civics Education.) 
(• 


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