Home Judge’s Opinions Biden, War and the Constitution

Biden, War and the Constitution

by Andrew P. Napolitano
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            Can the president fight any war he wishes? Can Congress fund any war it chooses? Are there constitutional and legal requirements that must first be met before war is waged? Can the United States legally attack an ally?

            These questions should be critical to a public debate over the U.S. military involvement in Ukraine and the Middle East. Sadly, there has been no great debate. The media are mouthing what the CIA is telling them, and only a few websites and podcasts — my own, “Judging Freedom” on YouTube, among them — are challenging the government’s reckless, immoral, illegal and unconstitutional wars.

            Here is the backstory.

            All power in the federal government comes from the Constitution and from no other source. Congress, however, has managed to extend its reach beyond the confines of the Constitution domestically by spending money in areas that it cannot regulate and in foreign policy by looking the other way when presidents initiate military violence.

            Under the Constitution, only Congress can declare war on a nation or group. The last time it did so was to initiate American involvement in World War II. But Congress has given away limited authority to presidents and permitted them to fight undeclared wars, such as President George W. Bush’s disastrous invasions of Afghanistan and Iraq, and the War Powers Resolution of 1973.

            Congress cannot legally declare war on Russia or Gaza, since there is no militarily grounded reason for doing so. Neither Russia nor Gaza poses any threat to American national security.

            Congress not only has not declared war on Russia; it has not authorized the use of American military force against it. Yet, it has given President Joe Biden a blank check for $113 billion and authorized him to give cash and military equipment to Ukraine, however he sees fit.

            He has promised to continue giving Ukraine whatever it needs for “as long as it takes.” As long as it takes to do what? He cannot answer that because he has no clear military objective. Eliminating Russian troops from eastern Ukraine and Crimea or Russian President Vladimir Putin from office are not realistically attainable military goals. Congress has only authorized cash and weapons to be sent to Ukraine, but Biden has sent troops as well.

            As of this writing, Congress has not authorized any military assistance to Israel, yet Biden has sent 2,000 Marines to await his orders on an aircraft carrier in the eastern Mediterranean, and he has put special forces on the ground in Gaza.

            The U.S. involvement in Vietnam began the same way: no declaration of war, no authorization for the use of military force, yet a gradual presidentially ordered buildup of American troops as advisers and instructors, and then a congressionally supported war that saw half a million American troops deployed, 10% of whom came home in body bags.

            We don’t know how many American troops are in Ukraine, as they are out of uniform and their whereabouts a secret. We do know that they are involved in hostilities, since much of the hardware that Biden has sent requires American know-how to operate and maintain. And some of the weaponry has American troops actually targeting Russian forces and pulling the triggers.

            Are American soldiers killing Russian soldiers? Yes. Are they helping to kill civilian residents of Gaza? Yes. Has any of this been authorized by Congress? No.

            Now back to the Constitution.

            The War Powers Resolution, which requires presidential notification to Congress of the use of American military force, is unconstitutional because it consists of Congress giving away one of its core functions — declaring war. The Supreme Court has characterized delegating away core functions as violative of the separation of powers. Stated differently, Congress cannot constitutionally authorize or permit the president to use the military in a non-defensive manner.

            Nevertheless, Biden has not informed Congress of his intentions to use American troops violently. Yet, he has used the Navy and the CIA to attack Germany by destroying the Nord Stream Pipeline; he has sent soldiers out of uniform to Ukraine; and he has dispatched Army, Navy and Marine personnel to wartime Israel.

            Don’t be surprised if Biden gives War Powers Act notice secretly to the Gang of Eight. The Gang of Eight is the Congress within the Congress. It consists of the chairs and ranking members of the House and Senate Intelligence Committees and the Republican and Democratic leaders of the House and Senate with which the president legally shares secrets.

            Just as Congress cannot delegate away its war-making powers to the president, it cannot delegate them away to the Gang of Eight. The concept of the Gang of Eight is antithetical to democratic values. Informing them of whatever violence the president is up to is done under an oath of secrecy. What kind of democracy operates and kills in secret and disenfranchises 95% of its elected federal representatives?  

            The various treaties to which the U.S. is a party limit its war-making to that which is defensive, proportional and reasonable. So, if a foreign power is about to strike — like on 9/11, while the government slept — the president can strike first in order to protect the U.S.

            Beyond an imminent attack, the basis for war must be real, the adversary’s anti-U.S. military behavior must be grave, the objective of war must be clear and attainable, and the means must be proportionate to the threat.

            Has the Russian military threatened the U.S.? No. Have the Palestinian people? No. What grave acts of aggression has either committed or threatened against the U.S.? None.

            Do we actually repose the Constitution into the hands of those who ignore it? Does the Congress uphold the Constitution? Does the president? The answers are obvious. It is also obvious that Joe Biden loves war and wants to run for reelection as a wartime president. And he seems to be getting his way.

            To learn more about Judge Andrew Napolitano, visit https://judgenap.com.



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