No, the War Powers Act does not authorize unilateral executive preemptive military action
After the recent chemical attack by the Syrian government on its rebelling citizens, the war drums in Washington DC are rumbling. Ships are positioned, missiles are pointed, sabres are rattled, allies are consulted, the UN is in motion (sluggish, corrupt, meaningless motion). But can the President alone make the decision to attack another nation’s government or military forces? According to the Constitution and the War Powers Act of 1973, the answer is absolutely NO.
After decades of war in Korea and Vietnam without congressional authorization, Congress passed the War Powers Resolution (commonly known now as the War Powers Act) specifically to make explicit limits on the President’s authority to engage in military action. It states that the President can engage in hostilities under only three conditions: a Congressional declaration, other Congressional authorization, or in retaliation for an attack on America.
It is ironic then that many people currently pining for missile strikes against Assad’s admittedly heinous regime use the War Powers Act to justify their position. “He has 60 days to act without Congress,” they say. “He only has to notify Congress within 48 hours if he attacks,” they say. Both are true, but only in the case of a strike in retaliation for an attack against us. If we are attacked, the President can immediately respond, then must notify Congress within 48 hours and get a declaration or statutory authority if hostilities last more than 60 days. The President cannot order any military action on his own if we are not attacked. Period.
It is even more ironic that the “cowboy,” “warmonger” President Bush went to Congress for specific authority to attack Iraq if necessary in October 2002 (a full 6 months before he eventually did), and the Nobel Peace Prize winning President Obama is now contemplating his second unauthorized, unconstitutional attack on a foreign nation. Fortunately, neither Congress nor the people support bombing Syria. The President will lose what little credibility he has in this area if he pursues this.