SYMPOSIUM COMMENT AND NOTE: EXECUTIVE WAR POWERS, SYRIA, AND PRESIDENT OBAMA'S 'RED LINE': A Whole Text Reading of the War Powers Clauses: Why the Constitution's Text Obviates Esoteric War Powers Debates and Encourages Policy Flexibility and Democratic Accountability

The question this panel was asked to debate is whether the President had "the power to use force in Syria without Congressional approval." But power is one thing and authority is another. The president may have the "power," a usurpation of which would be punishable through impeachment for "high Crimes and Misdemeanors." 1 Stated this way, the gravity of the question becomes clear, and prudence commands a close review of the potential grounds for concluding the President--had he gone forward with the course of action he threatened in the event President Assad crossed the President's "Red Line" and used chemical weapons against his own people--would have been liable to impeachment. I don't think so, as a close review of our Constitution's text and structure should make clear. Indeed, a close review of the whole text makes the President's authority to threaten or use force rather clear, establishing a default position that the President can act in the absence of express limitations imposed by Congress under the powers available to him. So the ground I would take to answer the question makes it a rather easy call. Textualists have long debated the original meaning of the "Declare War" Clause, 2 primarily focusing on the original understanding of the text in light of the technical understanding of lawyers (including international lawyers), then resorting to related language in the Constitutional text, followed by history from the drafting convention and the ratification history of the states. 3 These textualist debates turn ...