1/ Well, since you asked: It is hard to see how the air strikes square with Article II unless you embrace some notion of living constitutionalism.
2/ The Administration’s theory of the Syrian strikes is that Article II authorizes the Commander in Chief “to use military force overseas to defend important U.S. national interests.” defense.gov/News/News-Rele…. I.e. whenever the President thinks he should.
3/ The internal legal opinion will qualify that broad statement by talking about air power only, and will define the national interest as upholding (i) regional security & (ii) important int'l norms like prohibition on chemical weapons use. That is narrower, but not constraining
4/ This position reflects the progressive expansion of unilateral military power by POTUS, w/ acquiescence of Congress, for over a century. Congress put up a teeny road block in the War Powers Res. but basically has funded the huge military and watched from sidelines, as here.
5/ Does that make what Trump did lawful? It depends on one's theory of constitutionalism. Tis v hard to square with text and original meaning.
6/ Framers thought they were checking “the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body,” as Jefferson said.
7/ How they thought they would accomplish this is contested. Maybe by placing the power to declare war, and related powers, in Congress.. Or maybe it was by giving Congress control over the standing army by requiring it to appropriate for the military every two years. Or both.
7/ Some think presidential war powers come from the Art. II Vesting clause, but that is very hard to square with the text of Article II the rest of the Constitution, and with early understandings and practice.
8/ In any event, prez unilateralism has grown steadily w the rise in size of the standing army, and with other massive changes in the world – US as superpower, the Bomb, UN Charter, post-WWII national security bureaucracy, the rise of covert action and stealth warfare tools, etc
9/ Whether this const. change and the current resting place of presidential unilateralism is “lawful” depend on theories of constitutional change that are hard to assess on Twitter. I think we’ve reached a point that is hard to square with any notion of legal constraint.
10/ I’ll save for another tweet storm why unilateral presidential war powers on this scale and for this reason is, independent of legality, hard to square with conservatism. :) END
