The recent events in Syria created a great deal of commentary, both good and bad, on how the administration has handled the crisis. There is, once again, a great debate over who actually can commit the United States to an armed conflict, is it the president or the Congress? Ironically, the Syria case actually offers a great opportunity to make the case that 21st century warfare, unfortunately, necessitates greater authority given to the president to react when necessary - without a declaration of war from Congress. The key will be how the nation best constraints the executive from abusing the de facto authority he or she will have in the future.
Constitutionally, the founders, mostly within the person of Alexander Hamilton, anticipated this need for a strong executive and therefore modeled the American presidency on the thoughts of Blackstone, Montesquieu as well the prevailing practice of governors over the newly minted states. At the time that The Federalist Papers were written, governors were virtually all (New York being the strongest and the one most influential to Hamilton who resided in Harlem) viewed as commander in chief of their state militias and were granted great authorities over the conduct, employment, and regulation of the armies.
Hamilton (as well as Jay and Madison), although just having overthrown the rule of a king, were conscious there remained a need in both foreign affairs and warfare for the nation to speak in one voice. At the time, it is likely their goal was to ensure the very powerful Congress would not completely overshadow the president in conducting foreign policy. Clearly, cases like the use of chemical weapons release were not conceivable at the time of the founding, but the true genius of the founders is found in what they anticipated for the future of our great nation.
Twenty-first century warfare is one that, more than ever, will require rapid response from the executive to respond to once unimaginable threats - not necessarily from nation states in the clean, organized Westphalia model, but rather non-state actors and rogue elements within destabilized nations or governments. Although many policy makers and thoughtful citizens would enjoy the opportunity to engage in deliberation and debate on the floors of Congress as to whether, or how to, respond to impending or already occurring attacks against the nation, Unites States interests, or humanity, such opportunity in many attacks in the future will not offer such intellectual, democratic comforts. Just look today to drones, cyber attacks, chemical, biological, radiological (CBR) issues and the recurring threats from al-Qaida type groups. The need to respond to these threats is likely to grow exponentially in the years ahead.
When first confronted with the intelligence that "someone" in the Syrian civil war had committed violations of international law and norms by using chemical weapons, it appeared President Obama had the constitutional authority to act under his Article II powers. Such need to react rapidly, without the explicit support of the Congress, does dissipate as time progresses, but around Aug. 21, it appears he constitutionally had the authority to respond.
Whether to use this authority or not, and the policy ramifications of using such power, are completely different issues. Regardless, the executive has chosen to go to Congress, and in the interim, a diplomatic solution seems to be emerging. We can all be thankful that potential exercise of constitutional power was not necessary and that other, peaceful means are being employed. However, the issue of the power of the president will continue to emerge and the nation now needs to confront these issues, and public debate needs to ensue about who, what, how and when to respond - before the next international crisis emerges.
Glenn Sulmasy is a Coast Guard Academy professor and a Homeland and National Security Law Fellow at the Center for National Policy in Washington. The views expressed here are his own.