Judge Andrew Napolitano

Never mind that the photos shown by Obama's folks of aid workers ministering to the supposed victims of government gassing show the workers without gas masks or gloves, and never mind that the Assad regime has permitted U.N. weapons inspectors unfettered access to its materiel, and never mind that the president wants to invade Syria before the weapons inspectors issue their report. The president wants us to believe that the Assad regime intentionally gassed a thousand Syrian innocents who were of no military value to the rebels or threat to the regime -- and among whom were, according to former House Speaker Nancy Pelosi, D-Calif., "hundreds of children."

Even if all this took place as Obama claims, can he lawfully bomb Syria to punish its government for violating international norms or to deter it from doing so again? In a word: No.

International law recognizes only three lawful routes to the use of military force. It recognizes the right of every country to launch military force in order to prevent its own borders from being invaded or to subdue those who commenced an invasion. It also recognizes the ability of any U.N. member state to come to the aid of any other U.N. member state when one of them has been invaded. And treaties to which the U.S. and Syria are parties permit limited purpose invasions when approved by the U.N. None of these lawful scenarios applies to Syria.

Can Obama just launch an invasion of Syria even if it would be unlawful and even if Congress says no?

Because of the vicissitudes of history, the personalities of presidents and the myopic compromises of past Congresses, the area of presidential war-making has different legal and constitutional ramifications. Under the Constitution, only Congress can authorize the offensive use of military force. James Madison's notes from the Constitutional Convention in 1787 make it obvious that the Framers were nearly unanimous in their resolve to keep the war-making power away from the president and repose it exclusively with Congress. They did this clearly and unambiguously in Article I, Section 8 of the Constitution.

Notwithstanding the precise language of the Constitution and the history of the nation's birth, the War Powers Resolution (WPR), a federal statute enacted in 1973 over President Nixon's veto, does permit the president on his own to use the military for offensive wars for a maximum of 90 days. Thus, under current federal law, Obama may lawfully bomb Syria even if Congress declines to authorize him to do so and even though such an act would violate international law.

But the WPR is profoundly unconstitutional because it cedes Congress' constitutional war-making power to the president. The WPR was an ill-conceived political compromise effectuated by a Watergate-weakened president, congressional hawks who approved of Nixon's unilateral invasion of Cambodia and sober congressional heads more faithful to the separation of powers.

Yet, the Supreme Court has ruled consistently that the transfer of constitutional powers among the branches of the federal government is unconstitutional, even if popular and consensual, unless brought about by an amendment to the Constitution. Thus, Congress can no more let the president start wars than the president can let Congress appoint federal judges, lest the Constitution have no meaning or force of law.

So why does Obama want Congress' approval to do that which international law prohibits and federal law permits? Obama knows that war is the health of the state: It unites political adversaries around common patriotic-sounding goals and often generates support for those in harm's way and resources for the government officials who sent them there.

But, will another war enhance our freedoms or our safety? Will it add to our debt? Will it trash the law? Can we bomb and kill for bragging rights?

The answers are obvious, and they don't justify war.


Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.