WASHINGTON ― At a time when President Donald Trump tweets about potentially launching missile strikes against the Syrian government, House Speaker Paul Ryan (R-Wis.) says the chief executive can do that without congressional approval.
“The existing AUMF gives him the authority he needs to do what he may or may not do,” Ryan said Thursday at a press conference.
He’s referring to the sweeping authorization for use of military force, or AUMF, that Congress passed in 2001. That measure, passed hastily in response to the 9/11 attacks, allowed then-President George W. Bush to attack anyone connected to al Qaeda, anywhere, at any time.
It never expired. For years, President Barack Obama stretched its legal limits by arguing it allowed him to go around Congress and take military action against the Islamic State, since the terror group is an offshoot of al Qaeda. Now, Ryan says Trump can go around Congress and use it to unilaterally bomb Syria.
This is not how the Constitution spells out Congress’ role in wars.
Lawmakers are constitutionally required to authorize any sustained military action. It was a stretch for Obama to use the 2001 AUMF to combat ISIS, but Trump can’t even argue that missile strikes on Syrian government targets have anything to do with al Qaeda. His action would be in response to President Bashar al-Assad’s latest suspected use of chemical weapons on his own people.
The Trump administration hasn’t even tried to claim he can take military action in Syria because of the 2001 AUMF. When Trump directed strikes on a Syrian government airbase in April 2017 ― the first-ever direct military strike by the U.S. against Assad’s regime ― the administration claimed he had that authority under his presidential powers because it was limited military action, not because of the Iraq War-era AUMF.
And as lawyers at the nonpartisan Protect Democracy argue, U.S. military action in Syria is unlikely to be limited to a single engagement. Instead, they say, it is likely to lead to larger and ongoing conflicts, which sounds a lot more like a war than a surgical attack.
But Ryan said that Trump can go ahead, and he signaled little appetite for Congress debating and passing a new AUMF more narrowly targeted to the Syrian situation ― even though it is literally their job to do that.
“The last thing I want to see is an AUMF that makes it much more difficult for our military to respond to keep us safe, because they have the authority to do that right now,” he said.
Senate Majority Leader Mitch McConnell (R-Ky.) didn’t push back on the idea of Trump using the 2001 AUMF to bomb Syria, either, even as he noted, perhaps inadvertently, that the 17-year-old war authorization was never meant to be used to go after Assad.
“I think everyone knows we do have some American forces inside of Syria,” he told reporters on Tuesday. “My own view is they’re carrying out an important function and should stay there for the reason they were put there in the first place, which is to prevent [ISIS] from re-establishing [in] the eastern part of Syria.”
Congressional leaders have avoided action on a new war authorization for years for no real reason other than safeguarding lawmakers from a tough vote. But Trump’s casual hints at bombing Syria have rattled rank-and-file members in both parties, some of whom issued statements this week saying the president should not act without their sign-off.
“Assad must face consequences for the horrific atrocities he’s committed against the Syrian people,” said Sen. Tim Kaine (D-Va.). “But President Trump needs to finally lay out a Syria strategy and come to Congress for approval if he wants to initiate military action. He’s a president, not a king, and Congress needs to quit giving him a blank check to wage war against anyone, anywhere.”
“If he strikes Syria without our approval, what will stop him from bombing North Korea or Iran?” Kaine asked.
Sen. Mike Lee (R-Utah) said the latest suspected use by Assad of chemical weapons on his people “absolutely” requires a U.S. response. But it must be constitutionally sound.
“If that response is going to include military force, the president of the United States should come to Congress and ask for authorization before military force is used,” he said.
“If he strikes Syria without our approval, what will stop him from bombing North Korea or Iran?”
The issue came up repeatedly Thursday during CIA Director Mike Pompeo’s Senate confirmation hearing to be secretary of state.
“We do believe the president has inherent authorities within the Constitution and as commander in chief,” Sen. Rob Portman (R-Ohio) told him. “But it’s just not tenable to say we’re relying on an AUMF that goes back to 2001. That was 17 years ago. So, we would like to work with you on that.”
Sen. Chris Murphy (D-Conn.) pressed Pompeo on Trump’s legal authority to take military action without congressional authorization. The War Powers Act allows a president to take unilateral military action in the event of an attack on the U.S. or if the country faces an imminent threat, he said, neither of which is the case regarding the Syrian regime.
“You’re asking me today to conduct complex legal analyses with legal conclusions,” said Pompeo, a Harvard Law School graduate. “I know it’s important, so I’m trying to do my best. At the same time, I want to make sure I parse the language correctly.”
Murphy’s time ran out to ask more questions, but he ended with a statement that was clearly on the minds of lawmakers in the room.
“To the extent that there is not an identifiable constraint on [the president’s war-making] power, then we are all out of the business of declaring war,” he said.