Last weekend, President Joseph R. Biden Jr. ordered the U.S. military to bomb targets in Syria and Iraq in an effort "to send a clear and unambiguous deterrent message" to Iran.
It's apparently the belief of the Biden administration — as it has been with Biden's three immediate presidential predecessors — that the U.S. has the moral and legal authority to destroy any target outside the U.S. with financial or political or military ties to Iran.
Morally, the U.S. can only use force defensively or to repel an imminent attack.
When asked for the legal authority for an offensive attack, a Pentagon spokesperson stated that it could be found in Article II of the U.S. Constitution.
Yet — it's not there.
Governments love war.
The political philosopher Randolph Bourne, who made a lifetime study of the effects of war, once famously and derisively called it "the health of the State" because it tends to unify persons behind the military might of the war-makers and it makes it easier to raise taxes to support the troops.
It keeps the government's agents busy and its patrons well compensated.
Hence the nearly irresistible impulse that modern American presidents have had to utilize the military to assert imperial political will around the globe.
Can the president on his own send lethal missiles to any target of his choosing?
In a word: No.
Here is the backstory:
The core feature of the U.S. Constitution is the separation of powers. Congress writes the laws. The president enforces the laws.
The judiciary determines what the laws and the Constitution mean in given factual settings.
Though the three branches are equal, each has primacy over the other two in its core constitutional responsibilities, and each is required to defer to the other two in their core areas.
Also among the powers separated are the war powers.
These were hotly debated at the Constitutional Convention in 1787.
The Federalists — the big-government, central-planning folks — wanted the president to be able to command troops to fight at his discretion.
The Anti-Federalists — the small-government, liberty-loving folks — did not want any standing army, as they feared its use as an instrument to kill on a presidential whim and as a drain on the treasury.
Thomas Jefferson, who wrote the Declaration of Independence, which consists largely of an indictment of the imperial abuses of the British military by King George III, offered that if a president could both make war — unilaterally decide against whom to fight — and wage war as the commander in chief, he would be a king, not a president.
The compromise was a two-year military budget and the separation of war powers.
The two-year budget was intended to assure that no standing army could stand for longer than two years, after which the troops would go home or be newly authorized.
Though there was no standing army during the lifetimes of any of the framers of the Constitution, their intention died with the War Between the States.
The other part of the compromise that the framers crafted was to separate the war-making powers from the war-waging powers.
Thus, Article I of the Constitution provides that only Congress can make war, and Article II provides that only the president can wage it. Congress cannot command troops, and the president cannot send them or their lethal instruments to attack without a congressional declaration of war.
Yet, throughout history, congresses have looked the other way when presidents have directed the military to attack targets that were either civilian or were in a country against which there was no congressional declaration of war.
President Harry Truman targeted thousands of Japanese civilians just as World War II was about to end. President Lyndon B. Johnson killed tens of thousands of Vietnamese civilians.
President George W. Bush killed thousands of Afghan civilians.
President Barack Obama killed thousands in Libya, and President Donald Trump used the military to kill an Iranian general on his way to lunch in Iraq while the U.S. was at war with neither country. Trump also bombed Yemen as a favor to the Saudi government.
In all these unconstitutional offensive attacks, Congress looked the other way.
Can the president effectively usurp the war-making powers of Congress, knowing it will always look the other way?
The Supreme Court has never ruled directly on this.
Yet, every time the court has ruled on whether Congress can give away any of its powers to the other branches, the court has ruled against it.
The separation of powers was not established for convenience, nor is it voluntary.
Stated differently, the separation of powers is central to American government because it is a bulwark against the accumulation of too much power in one branch of government and thus is a restraint on incursions against personal liberty by the dominant branch.
When members of Congress look the other way as presidents decide against whom to wage war, they weaken the Constitution they have sworn to uphold.
In 1973, Congress enacted the War Powers Resolution over President Richard Nixon's veto. This law — never ruled on by the Supreme Court — lets the president choose a target and deploy troops for two 90-day periods of time upon notice to Congress, in direct defiance of the Constitution.
Biden, who as a senator was skeptical of this law, did not invoke it when he attacked in Syria and Iraq last week because he knows that the law is on shaky constitutional grounds, just as shaky as his generalized Article 2 claim.
Article II limits the presidential military role to commanding troops in wars that Congress has declared. When read in tandem with Article I, it is clear that where there has been no declaration of war, there can be no use of the military.
But that presumes that our public officials are faithful to the Constitution — a presumption upon which we know sadly that we cannot rely.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He sat on the bench from 1987 to 1995. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year. He is Fox News’ senior judicial analyst on the Fox News Channel and the Fox Business Network. He is the host of ''Freedom Watch'' on the Fox Business Network. Napolitano also lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in The New York Times, The Wall Street Journal, the Los Angeles Times, and numerous other publications. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitano's Reports — More Here.
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