At Opinio Juris, Julian Ku suggests that the newly announced U.S. policy to use air power to defend U.S.-trained rebels against attacks by the Syrian government is unconstitutional:
I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks. But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against. And its legality under international law is pretty tenuous as well.
Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war. So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization. That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007. Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack? It seems so long ago.
I agree (that is, I agree with Professor Ku's assessment of the legal issues, and I agree with Candidate Obama's assessment of the President's power). The President has no independent authority to attack Syrian government forces to defend the rebels, because that would amount to a declaration of war (for constitutional purposes) against the Syrian government (a limited declaration, but still a declaration).
Posted at 6:59 AM