Prominent Dems Break with Biden After Syria Bombing, Raising Constitutional Questions


On Thursday, President Joe Biden approved targeted airstrikes against Iranian-backed militia groups in Syria.

Briefing Congress days after the attack on Saturday, Biden laid out his political and legal justifications for the administration’s decision.

“I directed this military action consistent with my responsibility to protect United States citizens both at home and abroad and in furtherance of United States national security and foreign policy interests, pursuant to my constitutional authority to conduct United States foreign relations and as Commander in Chief and Chief Executive,” Biden wrote in a letter to the speaker of the House and president pro tempore of the Senate.

“The United States took this action pursuant to the United States’ inherent right of self-defense as reflected in Article 51 of the United Nations Charter.”

The airstrikes, which killed at least 22 people, also received support from high-ranking officials in the Department of Defense, NBC News reported.

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“We’re confident in the target we went after we know what we hit. We’re confident that target was being used by the same Shia militia that conducted the strikes,” Secretary of Defense Lloyd Austin said, according to Fox News.

The retaliatory airstrike followed recent attacks by Iranian-backed militia groups in Iraq. One U.S. contractor had been killed in a rocket attack that hit a U.S.-led coalition base in the Iraqi city of Erbil.

The airstrikes “were authorized in response to recent attacks against American and coalition personnel in Iraq, and to ongoing threats to those personnel,” Pentagon press secretary John Kirby said in a statement.

Officials in the administration contend that the air assault was well within the bounds of the president’s constitutional powers under Article II of the U.S. Constitution.

Is this airstrike legitimate under Article II of the U.S. Constitution?

“I would tell you that the president acted well within his constitutional authorities under Article II as commander in chief of the United States to protect American service members involved in operations. Clearly, there’s a constitutional authority here,” Kirby told NBC on Friday.

Despite the justification, the administration’s assault has made odd bedfellows in Washington, with key figures reaching across the aisle to support or oppose the move. While some have criticized Biden’s interpretation of the executive war powers, others have denounced the attacks as simply bad foreign policy.

Speaking for the libertarian anti-interventionist faction in Congress, Republican Sen. Rand Paul of Kentucky denounced the strike, tweeting, “@POTUS dragging the US into Syria’s civil war is a huge mistake. I strongly condemn this foolish military adventurism.”

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“I condemn meddling in Syria’s civil war. I also condemn attacking a sovereign nation without authority. What authority does @POTUS have to strike Syria?”

Prominent Democratic senators also questioned the administration’s decision to order the attack. Their criticism was pointed at Biden’s failure to consult Congress.

“The American people deserve to hear the Administration’s rationale for these strikes and its legal justification for acting without coming to Congress,” Democratic Sen. Tim Kaine of Virginia said in a statement.

“Offensive military action without congressional approval is not constitutional absent extraordinary circumstances. Congress must be fully briefed on this matter expeditiously.”

Democratic Sen. Chris Murphy of Connecticut voiced similar concerns with the administration’s claim that the president had the inherent authority to issue the attack.

“Retaliatory strikes not necessary to prevent an imminent threat” must obtain congressional authorization, Murphy said, according to The Associated Press.

Despite the pushback, the recent attack has received praise from some Republican members of Congress who support the administration’s hawkish attitude toward the Iranian-backed belligerents.

Rep. Michael McCaul of Texas, the ranking member on the House Foreign Affairs Committee, said he had “called for the administration to respond to the recent attacks on U.S. and coalition targets.”

“I commend them for doing just that,” he said.

“Responses like this are a necessary deterrent and remind Iran, its proxies, and our adversaries around the world that attacks on U.S. interests will not be tolerated.”

Sens. Marco Rubio of Florida and Lindsey Graham of South Carolina applauded Biden’s decision to order the attack last week, at least indirectly accepting the administration’s self-defense argument.

“Iranian backed militias have launched three attacks against Americans in the last two weeks. The strikes ordered by @potus against these militias tonight were targeted, proportional and necessary,” Rubio wrote on Twitter.

Graham offered a similar opinion in support of the retaliatory strike.

“Appreciate Biden Administration striking Iranian-backed militia groups in Syria who’ve been pushing attacks against American forces in Iraq and other locations,” Graham tweeted. “It is imperative that our enemies know that attacking Americans comes at a cost.”

Biden is the third president to order attacks in Syria without obtaining congressional approval, according to New York magazine.

His predecessors relied heavily on the 2001 Authorization for Use of Military Force, which launched the “War on Terror,” to expand the scope of presidential war powers and increase American military involvement in the Middle East.

Biden cited his authority under Article II of the U.S. Constitution and Article 51 of the Charter of the United Nations, which provides countries the right to “self-defence.”

The administration’s airstrikes follow a long line of past attacks ordered under former presidents Donald Trump and Barack Obama. Experts in constitutional theory have debated whether such attacks are constitutional or serve any political benefit.

Constitutional law professor Garrett Epps, writing in The Atlantic after Trump ordered an airstrike on enemy combatants in Syria, claimed that these types of interventionist actions are unwise, troublesome and constitutionally invalid.

“Trump did not have the authority to order any kind of strike on Syria. Congressional authorization was needed before any use of force against Syria; Friday’s attack was unconstitutional,” Epps wrote.

“The Constitution still requires congressional authorization for an attack on another country. The requirement is not a formality. It is in the Constitution for a reason. Congress’s failure to assert its prerogatives is … a matter of life or death for a self-governing republic.”

In an interview with Vox following a series of airstrikes in 2018, Stephen Vladeck, a constitutional law professor at the University of Texas at Austin, noted that a policy of inherent executive authority is unconstitutional but clouded by legal ambiguity.

“If we expanded Article II to allow the president to use force without Congress any time it furthered some international norm, that would open up a whole host of problems down the road,” Vladeck said.

“Congress is acquiescing because they’re satisfied with the practical results. But from a separation of powers perspective, that’s very dangerous. Congress has a vital role to play in the operation of our government, and it’s not playing it.”

“The short answer is that we really need a Congress that cares more about its institutional relationship to the president than it does about the partisan politics of the moment.”

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Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.
Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.