Boehner to Obama: How Does Syria Plan Comport With 'Exclusive' Constitutional Power of Congress?

By Terence P. Jeffrey | August 28, 2013 | 11:53pm EDT

House Speaker John Boehner (AP Photo/J. Scott Applewhite)

( - House Speaker John Boehner (R.-Ohio) sent a letter to President Barack Obama late Wednesday asking the president to tell the nation how his plans for Syria are “legally justified” and how that legal justification comports with the constitutional authority of Congress to authorize military action.

The letter marked a significant shift in both tone and substance from the statement Boehner had issued on Monday urging the president to “consult with Congress” and “explain” to the American people whatever “course of action he chooses” to take.”

“In addition,” Boehner wrote in his Wednesday letter, "it is essential you address on what basis any use of force would be legally justified and how the justification comports with the exclusive authority of congressional authorization under Article 1 of the Constitution.”

Article 1 of the Constitution gives Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” The draft version of this language that was debated in the Constitutional Convention on Aug. 17, 1787 would have given Congress the power to “make war,” according to the notes of the convention made by James Madison.

After Charles Pinckney of South Carolina objected that the legislature’s proceedings would be “too slow”—and recommended the war power be placed in the Senate alone—and Pierce Butler of South Carolina suggested the power be given to the president alone, Madison himself and Elbridge Gerry of Massachusetts "moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks."

Roger Sherman of Connecticut agreed that the “Executive shd. be able to repel and not to commence war.” Gerry himself observed that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” And George Mason indicated his support for the Madison-Gerry amendment, saying he “was agst giving the power of war to the Executive, because not safely to be trusted with it.”

The convention adopted Gerry’s and Madison’s language, believing it had thereby given Congress the power over the initiation of military action except when the president needed to “repel a sudden attack.”

George Washington, who presided over the Constitutional Convention, personally adhered to this understanding of the war power when he served as president. In 1793, Washington wrote: “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure."

As a presidential candidate, Obama expressed the same view as George Washington when asked about the war power by the Boston Globe in an interview published on Dec. 20, 2007.

“The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," Obama said then.

On Wednesday, Rep. Scott Rigell (R.-Va.) sent a letter to Obama—co-signed by more than 100 other House members—reminding the president that the Constitution gives Congress, not the Executive, the authority to decide whether to initiate military force except when the president must do so to stop an attack on the United States.

“While the Founders wisely gave the Office of the President the authority to act in emergencies, they foresaw the need to ensure public debate—and the active engagement of Congress—prior to committing U.S. military assets,” Rigell wrote. “Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution.”

In an interview with on Wednesday, Rigell--who served in the Marine Corps Reserves for six years and who now represents the congressional district with the largest concentration of U.S. military personnel—said that he was calling on Speaker Boehner to call the House of Representatives back into session now to deter the president from usurping Congress’s power over the use of military force.

“He should be calling the House back right now,” Rigell said of Boehner. “I will be clear on this.”

"I do have a call scheduled with one of our senior leaders this afternoon and I will be making that case," said Rigell. "I think we're at this point, and I regret that we're at this point. But that is where we are.”

In his own Wednesday letter to Obama, Boehner said he had agreed with Obama’s earlier calls for regime change in Syria and for declaring it a “red line” for the Syrian government to use chemical weapons.

“Since March of 2011, your policy has been to call for a stop to  the violence in Syria and to advocate for a political transition to a more democratic form of government,” Boehner wrote Obama. “On August 18, 2012, you called for President Assad’s resignation, adding his removal as part of the official policy of the United States. In addition, it has been the objective of the United States to prevent the use or transfer of chemical weapons. I support these policies and publicly agreed with you when you established your red line regarding the use or transfer of chemical weapons last August.”

Like Obama and Boehner, Ayman al Zawahiri, the leader of al Qaeda, has advocated regime change in Syria, vocally supporting the Sunni Muslim rebels fighting against Asad, who is a member of the Alawite sect, an offshoot of Shiite Islam. The Nusra Front, a part of the rebel opposition to the Assad regime, is an al Qaeda affiliate that the State Department has officially labeled a terrorist group.

In his letter, Boehner asked Obama to answer a series of questions. Among these were: “Does the Administration have contingency plans if the momentum does shift away from the regime but toward terrorist organizations fighting to gain and maintain control of the territory?”

In 2011, Obama used military force to support the rebellion in Libya—and did so without seeking congressional authorization. The U.S.-backed rebels succeeded in overthrowing the Libyan regime of Muammar Qaddafi. Then, on Sept. 11, 2012, Libyan terrorists in Benghazi attacked U.S. State Department facilities there, killing four Americans.

“It will take presidential leadership and a clear explanation of our policy, our interests, and our objectives to gain public and congressional support for any military action against Syria,” Boehner said in his letter to Obama.

“It will take that public support and congressional will to sustain the administration’s efforts, and our military, as well as their families, deserve to have the confidence that we collectively have their backs—and a thorough strategy in place,” wrote Boehner.

Boehner, however, did not say that he was calling the House--which is now in its August recess--back into session. Nor did he say he intended to call a vote in the House on whether to authorize the president to use force in Syria.

MRC Store