The escalating tension with North Korea reminds us once again that in matters of war and peace, there are often no good options. But that does not mean that there aren’t particularly bad, even catastrophic options. That is why the Founders divided constitutional war-making authority, granting Congress alone the power to declare and fund wars, while making the President the commander-in-chief of the armed forces. Decisions about going to war may be so difficult that Congress at times would rather sit them out, but weighing in on potential new wars is a Constitutional responsibility, not an elective activity.
That’s why, in the wake of President Trump’s strikes against the Syrian government earlier this year, we at Protect Democracy demanded to know the President’s legal justification. The debate about war powers has gone on for decades, but prior Presidents have felt obligated to at least explain their legal justification for military action. We filed FOIA requests, and when the Administration refused to comply, we went to court — and have already won a preliminary decision. We took no position on the wisdom of the strikes themselves, and many in Congress and in the public may have supported the strikes, but as U.S. District Court Judge Christopher Cooper put it in his ruling, “Being closed off from such a debate is itself a harm in an open democracy… Military strikes cannot be undone.”