Monday, August 26, 2013

Jacob G. Hornberger: The dictatorial power to punish a dictator

  President Obama is considering what military action the U.S. government should take against Syria in retaliation for its purported use of chemical weapons against the Syrian people. At the risk of asking an indelicate question, where in the Constitution does it authorize the president to undertake such action?

  When our American ancestors were calling the federal government into existence, they had two basic ways to go: (1) give the president unlimited authority to do whatever he deems is right or (2) limit the authority of the president to undertake only certain actions.

  The first option would obviously have vested dictatorial powers within the president. That’s what a dictatorship is all about — the ability of a ruler to undertake whatever actions he wants and whatever he deems is in the best interests of the country.

  That’s not the type of government our American ancestors desired to bring into existence. Instead, they chose the second option — the one in which the ruler’s powers are limited in nature.

  That’s what the Constitution was all about. At the same time it brought the federal government into existence, it also limited the powers of the president (and other federal officials) to those expressly enumerated in the Constitution. The idea was that if a power wasn’t enumerated, the president was not authorized to exercise it.

  President Obama says that if he and his advisors conclude that Syria’s dictator, Bashar al-Assad, has employed chemical weapons in Syria’s civil war, Obama intends to order his military forces to attack Syria.

  Obama hasn’t yet made clear how he intends to arrive at a verdict as to whether the Syrian dictatorship truly is guilty of the suspected offense. That is, will there be a hearing at which evidence is presented? Will it be before a judge or jury? What will be the burden of proof and who will bear it? Will the Syrian government have a right to be heard?

  The answer is: Obama will make the determination all on his own, with the assistance of advisors within the national-security state apparatus that now forms a permanent part of our governmental structure.

  More important, however, is the critical question: Where in the Constitution does it authorize President Obama to attack another country on his own initiative in retaliation for what the government of that country has supposedly done to its own citizens?

  The answer is: The Constitution does not authorize Obama to undertake such action. If the Framers had included the following delegation of power, “If a foreign regime commits a war crime against its own citizens, the president shall be authorized to wage war against such a regime,” that would be one thing. But no such grant of power exists in the U.S. Constitution.

  Obama might respond with the fact that the Constitution does delegate the power to wage war to the president. That’s true except that the power to declare war was delegated to Congress, not the president. That’s means that under our form of government, as provided in the Constitution, the president is precluded from waging war without a declaration of war from Congress.

  Yet, it’s clear that Obama has absolutely no intention of seeking a congressional declaration of war before undertaking a military attack on Syria. In other words, he intends to exercise dictatorial power in determining how to use his army against Syria. That, needless to say, is ironic since Obama will be employing dictatorial power to deal with the Syrian dictatorship.

  We also should bear in mind that any military action that President Obama and his army undertake against Syria is an act of war, one that might well cause Syrian forces or agents to retaliate against American targets. By remembering this, Americans will be less apt to fall for the “They hate us for our freedom and values” line that will inevitably come from U.S. officials after retaliatory strikes against Americans by Syria.

  Americans often forget the Constitution is the law that we the people have imposed on President Obama (and the rest of the federal government). The president expects us to obey his laws and punishes us severely when we don’t. Just ask any of the thousands of people serving long prison terms for violating federal drug laws. Why shouldn’t the president be required to obey our law, the law of the Constitution? Why should Obama be entitled to exercise dictatorial powers, even if it’s just to punish another dictator?

  About the author: Jacob G. Hornberger is the founder and president of The Future of Freedom Foundation.

  This article was published by The Future of Freedom Foundation.

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