Syria, Threats of Force, and Constitutional War Powers

In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy. The recent Syria case highlights the President’s vast legal power to threaten military force as well as the political constraints imposed by Congress on such threats. Incorporating threats into an understanding of constitutional powers over war and peace upends traditional arguments about presidential flexibility and congressional checks—arguments that have failed to keep pace with changes in American grand strategy.

In August 2013, the Syrian government of Bashar al-Assad launched a major sarin gas attack against opponents and civilians inside Syria, flagrantly crossing the "red line"—widely interpreted as an implicit threat to intervene militarily in response to chemical weapons use—that President Obama had previously declared and reiterated in public remarks.¹ Amid widespread suggestions that American credibility was now on the line, President Obama responded on August 31 with two simultaneous announcements: first, he had decided that the United States should respond militarily with limited strikes against Syrian government targets; and, second, notwithstanding his insistence that he had constitutional authority as Commander-in-Chief to take that action unilaterally, he would seek congressional approval to do so.² The Obama Administration then began an intensive lobbying campaign to convince skeptical legislators and the public that following through on the proposed military strike was necessary not only to deter further chemical weapons attacks by Syrian government forces, but to deter the acquisition and use of weapons of mass destruction by other hostile regimes and terrorist organizations.³

Almost two hundred years earlier, another President drew a red line. In his 1823 address to Congress, President Monroe declared to European powers that the United States would oppose any efforts to colonize or reassert control in the Western Hemisphere.⁴

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Source: http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/executive-power/syria,-threats-of-force,-and-constitutional-war-powers/