I thank my friend John Yoo for his comments, especially for the bits that are wrong.
Contrary to the constantly repeated claim, it simply is not the case that the Barbary wars were conducted on presidential authority without congressional authorization. Not only did Thomas Jefferson and John Adams feel obliged to report to Congress during their negotiations with the Barbary powers — it was Congress, after all, that had dispatched them — Congress explicitly authorized hostilities against the Barbary states in the naval legislation of 1801, which, in the refreshingly plain language of the time, directed the commanders of the newly commissioned ships to “protect our commerce and chastise their insolence — by sinking, burning or destroying their ships and vessels wherever you shall find them,” in the event that the Barbary powers declared war on the United States, which they did. After Jefferson was inaugurated as president, he sent a small naval detachment to the Barbary coast in anticipation of hostilities, but, unlike John Yoo, he did not understand his presidential powers to extend to the making of war without congressional authorization, writing he remained “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”
Congress is the body invested with the responsibility for deciding whether the United States goes to war. That is the plain language of the Constitution, and it was regular practice whether Congress was making a formal declaration of war or a less dramatic “authorization of the use of military force,” as we now say.
The Constitution does not say very much about the office of “commander in chief.” The Founders’ understanding of what a commander in chief does surely was informed by British practice. Here, the language is also pretty plain, with military leaders being appointed “Captain-General and Commander in Chief, under Parliament.” British commanders in chief did not have anything like the power to unilaterally commence hostilities on a foreign power. Their power, like that of the American president in his role as commander in chief, was operational. The political question is left to Congress, unless we are to believe that the Constitution’s investiture of war-making power in the Congress is language that is completely devoid of meaning. My respect for John Yoo’s legal thinking is considerable, but here I think Thomas Jefferson has the better end of the argument. Congress sends the nation to war, and the executive executes.
Which is of course as it should be. The decision to go to war is among the most serious that a nation makes, if not the most serious, and it is properly made by the representatives of the people rather than by the chief administrator.
I do not think that we need so wide an interpretation of presidential powers in order to maintain the state of readiness that John Yoo argues is necessary in the current environment. If what is needed is a situation in which the president is authorized to conduct short-term hostilities in emergency situations such as attacks on the United States or on U.S. troops abroad, then we should be satisfied: That is the law of the land under the War Powers Resolution, which makes explicit something quite close to Jefferson’s understanding of the war powers. But the straightforward criteria of the War Powers Resolution are not met by the situation in Syria, the awful and murderous government of which has not attacked the United States, U.S. possessions abroad, or U.S. troops.
If President Trump wants a war with Syria, then let him go to Congress for authorization. It was good enough for President Jefferson.