Home Judge’s Opinions The Emperor’s New Clothes

The Emperor’s New Clothes

by Andrew P. Napolitano
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Just as a fictional emperor paid his tailors a fortune for clothes that no one could see, and then marched naked in a grand public procession while his subjects roared with laughter, so, too, is President Joe Biden attempting to march clothed with the Constitution he dishonors. He will have the same fate as the emperor.

            Last week, Biden used the U.S. Navy to attack militias in Yemen. He did so after learning that the militias had attacked non-American ships carrying goods and fuel destined for Israel. Israel is currently engaged in destroying Gaza and the U.S. backs its long-time political ally.

            Yet, the questions arise: 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 a country that is a member of the United Nations?

            These questions should be front and center in a debate over the U.S. involvement in the Middle East, Yemen, Africa, Ukraine, Iraq, Syria and wherever else U.S. troops are involved in hostilities. 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.

            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 by giving money to the president and then looking the other way when he spends it.

            Congress cannot legally declare war on Gaza or Yemen or Russia, since there are no militarily grounded reasons for doing so. None of these countries poses a threat to American national security, and the U.S. has no treaty that triggers American military support to any ally implicated by those countries. But Congress spends money on wars nevertheless.

            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. Examples of this are the unconstitutional War Powers Resolution of 1973 and President George W. Bush’s disastrous and criminal invasions of Afghanistan and Iraq.

            Congress has not only not declared war on Yemen; it has not authorized the use of American military forces against it. Yet, Biden has inherited a blank check in the form of the Authorization for Use of Military Force of 2001. That unconstitutional legislation cedes Congress’ war-making powers to the president for the purpose of attacking any person or group involved in the 9/11 attacks. The 9/11 attacks? They were 22 years ago! They were, but all presidents since the younger Bush have claimed authority under this law to kill whomever they pleased in the Middle East.

            In Ukraine, Congress has only authorized weapons and cash to be sent to Ukraine, but Biden has sent troops as well. 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 buildup of American troops as advisers and instructors, and then a congressionally supported land war that saw half a million American troops deployed, 10% of whom came home in body bags.

            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 constitutional functions as violative of the Constitution’s separation of powers. Stated differently, Congress cannot allow the president to do its job.

            Nevertheless, Biden has not informed Congress of his intentions to use American troops violently in Ukraine or in Yemen. Yet, he has deployed soldiers out of uniform in Ukraine, so as to perpetuate the deception that boots are not on the ground, and he has killed people in Yemen.

            Don’t be surprised if Biden gives War Powers Resolution notification 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? Ours.

            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 repelling an actual 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.

            Have Russia or Yemen threatened the U.S.? No. What grave acts have they committed against the U.S.? None. What is Biden’s objective? His vision of American empire.

            Does the Congress uphold the Constitution? Does the president? The answers are obvious.

            We can all see right through Biden’s constitutional pretenses just as the fictional folks saw their emperor’s nakedness. We have reposed the Constitution for safekeeping into the hands of those who ignore it. The consequences are the deaths of innocents, the hatred of billions, incalculable debt and the loss of personal liberty.

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