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The President Does Not Have Unlimited Power to Declare War

F.H. Buckley recently wrote an opinion piece in the [1] New York Post headlined “When the president doesn’t need to ask Congress before striking.” Not to give away the ending, but it’s counter-historical, counter-textual, and counter-constitutional. The article’s audacity is more to be marveled at than imitated. The president always needs congressional authorization for offensive use of the United States Armed Forces. Thus, President Trump’s twin missile attacks against Syria for its unsubstantiated use of chemical weapons against third parties violated the Constitution’s Declare War Clause.  

That clause’s “plain meaning,” Alexander Hamilton explained, is that “it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received. In other words, it belongs only to Congress to go to war.” George Washington spoke for every participant in the drafting and ratifying of the Constitution when he elaborated, “The Constitution vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until and after they shall have deliberated upon the subject and authorized such a measure.”

It speaks volumes that Mr. Buckley is unable to reference a single word from the Constitution’s framers to contradict Hamilton or Washington. Instead, he decrees in the manner of a Russian czar that the Declare War Clause has become antiquated and may be ignored with impunity, and that wars in self-defense and wars of aggression are indistinguishable, like erasing the distinction between killing in self-defense and first-degree murder. That should shock even the most stone-hearted.

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The Constitution is not like a restricted railroad ticket, good for this day and train only. Neither is it deaf to changed circumstances or the force of better reasoning. Article V authorizes amendments by two thirds of the House and Senate and three fourths of the States. Twenty-seven amendments have been ratified over the course of 228 years, including the Bill of Rights, the Civil War Amendments, and a two-term limit for the presidency. But Mr. Buckley can no more repeal the Declare War Clause by shouting about its alleged unworkability than anti-gun zealots can repeal the Second Amendment’s individual right to keep and bear arms by decrying the use of firearms to commit murder. Mr. Buckley’s reasoning invites every man to become a law unto himself and pick and choose which constitutional prescriptions to obey.

Mr. Buckley also errs by suggesting that Franklin Roosevelt could have fought World War II against Japan after Pearl Harbor without a congressional declaration of war. President Thomas Jefferson confronted a comparable situation after the Barbary States of North Africa had declared war against the United States. He informed Congress that he was “[u]nauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense,” and communicated all information to Congress relevant to determining whether it should authorize “measures of offense also.”

Contrary to Mr. Buckley, the cases of Afghanistan, Syria, and Africa do not excuse flouting the Declare War Clause. In Afghanistan, we are propping up a tottering, corrupt, fraudulently elected, unpopular government that routinely violates the Afghan Constitution. As Mr. Buckley concedes, the feeble Afghan state would immediately collapse in favor of the Taliban if America’s 15,000 mercenary troops were removed. But it is up to Congress, not the president, to decide whether the armed forces should be employed offensively in the hopes of preventing such an eventuality. Why is Mr. Buckley terrified of a congressional vote?

Contrary to Mr. Buckley, neither Syria nor Africa confront the United States with a choice between complete war or nothing under the Declare War Clause. As Chief Justice John Marshall explained in Bas v. Tingy, Congress may authorize the offensive use of the military to conduct limited war: limited in place, in objects, and in time. But Congress has never authorized missile attacks on Syria or the use of the armed forces to fight terrorist organizations in Niger or West Africa generally. Both were unconstitutionally dictated by President Trump alone.

The law on this is clear as day. As the Supreme Court decreed in the Prize Cases: “By the Constitution, Congress alone has the power to declare a…foreign war…[The President] has no power to initiate…war…against a foreign nation.”

Mr. Buckley further errantly maintains that the Declare War Clause is much ado about nothing. If asked by the President, says Mr. Buckley, Congress will always approve offensive use of the armed forces whether in Syria or elsewhere. Did he take history lessons from President Trump? In 228 years, Congress has declared war in only five conflicts, and only in response to foreign aggression against the United States. In 2013, Congress refused President Obama’s request for authority to attack Syria. In 1995, it refused President Clinton’s request for authority to conduct military strikes in Bosnia. Congress has the wonderful temperament of a Labrador Retriever. It stays at peace unless attacked.

In sum, there may be better ways to destroy and bankrupt our republic than perpetual presidential wars, but they do not readily come to mind.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.         

12 Comments (Open | Close)

12 Comments To "The President Does Not Have Unlimited Power to Declare War"

#1 Comment By polistra On May 10, 2018 @ 4:52 am

Presidents have been starting wars since 1945, therefore presidents have the power to start wars. If they didn’t have the power they wouldn’t be doing it.

#2 Comment By Dan Green On May 10, 2018 @ 8:53 am

Reality seems we simply creep into war as deployment stars way up front until we encounter hostilities and need defends our troops. FDR only got the green light because of Pearl.

#3 Comment By Connecticut Farmer On May 10, 2018 @ 10:13 am

Bingo!!! Well written, Mr. Fein.

#4 Comment By gnashingofteeth On May 10, 2018 @ 10:18 am

What do you do when the Congress is too craven to confront the President about obvious violations of the Declare War Clause, and the current SCOTUS wouldn’t weigh in on this (5-4) as a “political question”?

#5 Comment By One Guy On May 10, 2018 @ 12:45 pm

The president can do whatever he wants to. Who is going to stop him?

#6 Comment By b. On May 10, 2018 @ 1:21 pm

“Contrary to Mr. Buckley, the cases of Afghanistan, Syria, and Africa do not excuse flouting the Declare War Clause.”

It is disturbing and disappointing that Mr. Fein refuses to discuss the case of Iraq 2003, or indeed Libya and Yemen.

“Congress may authorize the offensive use of the military to conduct limited war: limited in place, in objects, and in time.”

Under the Constitution, and by ratification of the UN Charter, Congress is no longer legally and constitutionally able to authorize aggressive, elective, preventive war of choice or conquest. Congress may authorize, it will merely mean that whichever Senators and representatives vote to authorize an illegal act stand in violation of the law, and in defiance of the Constitution and the very principle of the rule of law. We The People can request, or acquiesce to, an abrogation of international treaties or even, by convention, an amendment of the Constitution. In the meantime, to disregard or openly disavow the Constitution and the law is to act as an “enemy of the Constitution”, and by rights an impeachable offense.

“Congress [..] stays at peace unless attacked.”

Mr. Fein is giving too much credit to the corrupt incumbents in Congress, who under the Constitution and the concept of checks and balances are not merely permitted, but required to vigorously defend their constitutional privileges regarding Congress’ power to declare war. Instead, Congress stays mute, aiding and abetting by eagerly using the power of the purse, exponentially increasing our debt, in profitable corruption – mute until forced to go on the record.

This rot precedes Trump by many decades, and the time to take a stand was 2003, if not earlier. Mr. Fein may wish to edit history; in this he is no less counter-historic than Buckley.

#7 Comment By Bruce Clark On May 10, 2018 @ 6:38 pm

The pretence of the War Powers Resolution of 1763 is that war is constitutional in the absence of a Congressional “declaration of war” provided there is, either, some other “specific statutory authorization” or an attack not upon U.S. territory but rather “upon its armed forces” wherever they may be. That was an unconstitutional inter-delegation of Congress’s War Power jurisdiction, but nevertheless was said to justify the Authorization of the Use of Military Force Resolution in Iraq in 2001, and again in 2002. The 10th amendment is being flouted.

#8 Comment By Dave On May 10, 2018 @ 11:24 pm

… but they apparently have the power to make treaties on their own?

#9 Comment By Fran Macadam On May 11, 2018 @ 1:17 am

History teaches, had anyone in authority been attending, that imperial policies must always lead to Caesarism.

“The common people never want war,” the defeated and justly executed Nazi observed correctly, but they never have any say in the matter, and it has proven true in any country, regardless of apparent political system.

As history would have shown.

Thus,out of elite ignorance, hubris and greed, as Chalmers Johnston put it, “the sorrows of empire,” to be visited upon the American people, our prior form of governance, as well as our policy elites’ victims.

#10 Comment By John On May 11, 2018 @ 7:14 am

The military works for the President.

The people who could prevent the President from using the military, by threatening its funding or his position in office, choose not to do either.

Qui tacet consentire videtur, ubi loqui debuit ac potuit.

#11 Comment By Douglas K. On May 11, 2018 @ 9:13 am

Congress could use impeachment to put a stop to this sort of thing anytime.

But they haven’t done it, despite multiple unconstitutional acts by multiple presidents. And they almost certainly won’t with this one.

It doesn’t really matter what any law says, if nobody ever faces consequences for breaking it.

#12 Comment By dbrize On May 11, 2018 @ 12:45 pm

The late Joe Sobran phrased it similar to this:

“Never fear friends, the powers that be will never allow a little thing like the Constitution prevent them from doing whatever they want.