As President Donald Trump receives widespread approval for his successful airstrikes against the murderous Syrian regime, Democrats have offered a curious response: President Barack Obama would have done the same thing had Congress allowed him.
If Congress had allowed him?! Since when did Obama ever rely on congressional permission? The notion is simply laughable when applied to a president who said the following:
- “When Congress refuses to act, Joe and I are going to act.” – President Obama, February 21, 2012
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- “We are not just going to wait for legislation in order to make sure that we’re providing Americans the kind of help that they need. I’ve got a pen, and I’ve got a phone.” – President Obama, January 14, 2014
- “Congress still needs to act… But we also can’t wait.” – President Obama, January 5, 2016
And act he did.
For those suggesting Obama avoided acting in Syria due to congressional deference, I pose the following questions: Where was this deference when Obama unilaterally granted legal status to five million immigrants – a move the Fifth Circuit called “manifestly contrary” to congressional statute? When he rewrote federal immigration caps? When he “reinterpret[ed]” firearm legislation? Or when he altered the congressionally-approved Visa Waiver Program to appease Iran?
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In all of those cases, deference was sparse. And yet we are told it’s deference that handicapped Obama into unmistakable Syrian inaction.
In 2013, Obama got pushed into a self-made corner. Obama had forcefully warned Syrian President Bashar al-Assad: “[A] red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized.” But few brutal dictators take their cues from weak presidents, and Assad daringly and gruesomely crossed the figurative line, using chemical weaponry to kill 1,200 of his own people.
To remedy this unfathomable act of hate, Obama pondered action but “abruptly changed course… and postponed a military strike against the Syrian government in retaliation for a chemical weapons attack so he could seek authorization first from a deeply skeptical Congress,” according to the New York Times.
That “deeply skeptical” Congress never passed Obama’s requested Authorization for the Use of Military Force (AUMF), but did they even need to? President Trump acted unilaterally, and he did so on firm legal footing.
Detractors of presidential action point to Article I, Section 8 of the Constitution, which grants Congress the power “to declare war.” They likewise refer to the War Powers Resolution of 1973, which only permits the President to “introduce United States Armed Forces into hostilities” if there is “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the Untied States, its territories or possessions, or its armed forces.”
Advocates of presidential power counter detractors with the president’s Article 2 commander-in-chief role as a source of power for limited strikes as opposed to broad congressional declaration of war.
It was under this source of authority that Trump avenged Syria’s heinous use of chemical weapons yet again four years later. “I acted in the vital national security and foreign policy interest of the United States, pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive,” Trump wrote in his report to Congress. Trump had also individually informed several members of Congress in the lead up to the strikes.
Georgetown University professor Anthony Arend remarked, “Because the air strikes were undertaken by cruise missiles that put virtually no American lives at risk and because the strikes lasted only minutes, the president’s action would seem to be a lawful use of force under the Constitution.” Arend’s assessment is in line with many others in the international relations community.
So why did Obama insist on congressional approval?
You would be naïve to think that the president was engaging in separation-of-powers deference. No, Obama was using Congress as a scapegoat. Congressional inaction permitted him to escape making the difficult choice of whether to redress Syria’s use of chemical weapons with direct U.S. airstrikes.
If you think President Trump acted unconstitutionally in his Syrian airstrikes, I grant you that the question is fairly debatable, though the morality of his actions are not. He did what was right.
Nevertheless, if you think Obama avoided striking Syria in deference to Congress, “I got some ocean front property in Arizona” to sell you, as the George Strait lyric goes.
Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown University’s School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.