War and the Constitution

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?

These questions should be addressed in a national debate over the U.S. military involvement in Ukraine and Israel. Sadly, there has been no debate. The media are mouthing what the CIA is telling them, Congress is in lock-step, 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.

The Supreme Court has ruled that 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 purchasing compliance from the states by bribing them; and in foreign policy by paying for wars it cannot legally declare.

Congress cannot legally declare war on Russia or Iran, since there is no American militarily grounded reason for doing so. Russia and Iran pose no credible threats to American national security. Moreover, the U.S. has no treaties with Ukraine or Israel that trigger an American military defense. But Congress spends money on those 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, such as the War Powers Resolution of 1973 and President George W. Bush's disastrous and criminal invasions of Afghanistan and Iraq.

Last week, the Biden administration announced that it was sending around 100 troops to Israel to man the Terminal High Altitude Area Defense system, or THAAD, the U.S. has sent there. Then, the administration announced that it was sending a second THAAD unit and another 100 troops. The THAADs will presumably be used in Israel's defense against Iran.

Congress has not only not declared war on Iran; it has not authorized the use of American military forces against it. Yet, it has given President Joe Biden a blank check and authorized him to spend it on military equipment for Israel however he sees fit, without a lawful or even credible American military objective.

Biden has also promised to continue giving Ukraine whatever it needs for "as long as it takes." As long as it takes to do what? Eliminating Russian troops from Ukraine and Crimea or Russian President Vladimir Putin from office are not realistically attainable American military goals. Last week, Defense Secretary Lloyd Austin said he fears Putin has his eyes on Poland. That's scaremongering nonsense.

The U.S. involvement in Vietnam began the same way: no declaration of war; no authorization for the use of military force; no clear American military objective; shamelessly preaching the discredited domino theory of collapsing countries; a gradual buildup of American troops as technicians, 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. And for what?

We don't know how many American troops are in Ukraine. We do know that they are involved in hostilities, since much of the offensive 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. Will American troops soon be shooting down Iranian pilots in their jets? Yes. None of this has been authorized by Congress, but Congress has paid for all of it.

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 to the president one of its core functions -- declaring war.

The Supreme Court has characterized delegating away core functions as violative of the separation of powers because when one branch of the federal government cedes its powers to another, the receiving branch threatens the constitutional order and potentially jeopardizes personal liberty.

Nevertheless, Biden has not informed Congress of his intentions to use American troops in Ukraine or Israel.

Don't be surprised if Biden gives War Powers Resolution notice secretly to the Gang of Eight. That's 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.

This, too, is unconstitutional. 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?

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 or Dec. 7, 1941, 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 Russia or Iran threatened the U.S.? No. What grave acts have they committed against the U.S.? None. What is Biden's clear military objective? He won't say.

Do Congress or the president uphold the Constitution? They do not. They also don't understand that the problem with searching the world for monsters to slay is that they have a way of following you home.

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

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