Article 1, Section 8, Clause 11
"The Congress shall have Power... To declare War"

“The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject and authorized such a measure.” - George Washington

Empire Salons

In memory of Committee for the Republic co-founder and President, William Nitze.
April 11, 2021

Restore the Constitution

Committee Vice Chairman Bruce Fein has written a detailed guideline for restoring the balance of power between the three branches of our government. Read it here: Nader.org
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Our letter to Merrick Garland

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March 3, 2021
Honorable Merrick Garland
Attorney General-Designate
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
 
  Re:  Presidential compliance with the Declare War Clause—President Joe Biden’s February 25, 2021 air strike against Syria and continuation of unconstitutional presidential wars
  Dear Attorney General-Designate Garland:
  During your confirmation hearing before the Senate Judiciary Committee, you explained: “The Attorney General takes an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic. I am mindful of the tremendous responsibility that comes with this role.”
  The attached Memorandum for the Attorney General underscores that the Constitution’s Declare War Clause, as understood by its authors, ratifiers, and President Joe Biden,
entrusts exclusively to Congress responsibility for deciding whether to use the armed forces in an offensive capacity, leaving to the executive the authority to respond to sudden attacks against the United States that have already broken the peace.
  Without congressional authority, on February 25, 2021, President Biden ordered an attack against Syria featuring two F-15E Strike Eagles dropping seven precision guided munitions on Abu Karmal.  The Rome Statute of the International Criminal Court defines the crime of aggression to include: “Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State.”
  As the attached Memorandum persuasively demonstrates, your pledge to the Senate Judiciary Committee will oblige you as Attorney General to advise President Biden that the air strike in Syria violated the Declare War Clause and constituted an impeachable offense under Mr. Biden’s own standards.  The Memorandum further demonstrates that your oath will oblige you to advise President Biden that ongoing presidential wars in Libya, Somalia, Syria, Iraq, Afghanistan, Pakistan, and against Al Qaeda and ISIS transgress the Declare War Clause and must cease absent prompt congressional declarations of war.
  Telling a president “No” requires political courage.  But capitulation to the President at the expense of the Constitution is not an option.  During World War II, Attorney General Francis Biddle initially opposed odious concentration camps for 120,000 Americans of Japanese ancestry. But he acquiesced without protest to accommodate President Franklin Roosevelt.  Mr. Biddle explained in his 1962 Memoir: “The decision had been made by the President.  It was a matter of military judgment. I did not think I should oppose it further.”
  Mr. Biddle’s faint-heartedness should not be repeated.
  Sincerely,

John Henry
Chairman
Bruce Fein
Vice Chairman

Our letter to President Joe Biden

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January 18, 2021
President-elect Joe R. Biden, Jr.
Biden-Harris Transition
1401 Constitution Avenue, N.W.
Washington, D.C. 20230
   Dear President-Elect Biden:
   The Committee for the Republic congratulates you for the Electoral College's certification that you have been elected President of the United States to be inaugurated January 20, 2021. We expect the Constitution will begin a long journey back to restoration under your stewardship.
   On that score, the Committee strongly urges you to announce in your inaugural address that you will terminate within 60 days any use of the United States armed forces to participate directly, indirectly, or otherwise, either as a belligerent or co-belligerent, in the ongoing wars in Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, Pakistan, and against Al Qaeda and ISIS for the express reason that the Declare War Clause of the Constitution entrusts exclusively to Congress responsibility for deciding whether to use the armed forces in an offensive capacity. Congress has never mandated the use of the armed forces offensively against any of these nations or non-state actors. Indeed, Congress voted against our unilateral military misadventure in Yemen in passing S.J. Res. 7, vetoed by President Donald Trump on April 16, 2019.
   The Declare War Clause permits no delegation of congressional authority over war to the President. Indeed, the premise of the Clause is that the President would be an untrustworthy steward of the war power because of the constant temptation to concoct excuses for belligerency to aggrandize executive power. James Madison, father of the Constitution, elaborated:
   "Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be conunenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws."
   You formerly served as Chairman of the Senate Judiciary Committee and Senate Foreign Relations Committee. You understand that the Constitution's framers unanimously understood that only Congress was empowered take the nation from a state of peace to a state of war, leaving the President authority to respond in self-defense to sudden attacks that had already broken the peace. President George Washington, who presided over the creation of the Constitution, spoke for every participant in explaining:
   "The constitution vests the power of declaring war in Congress; therefore, no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure."
   As a presidential candidate in 2007, echoing President Washington, you adamantly declared in an exchange with Chris Matthews on NBC that a president who initiates war or otherwise uses the armed forces offensively without a prior declaration of war by Congress commits an impeachable high crime and misdemeanor justifying removal from office.
   MATTHEWS: You said that if the president of the United States had launched an attack on Iran without congressional approval, it would have been an impeachable offense.
   BIDEN: Absolutely.
   MATTHEWS: Do you want to review that comment you made? Well, how do you stand on that now?
   BIDEN: Yes, I do. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. You've known me for a long time. I was chairman of the Judiciary Committee for 17 years, or its ranking member. I teach separation of powers and constitutional law. This is something I know.
   So I got together and brought a group of constitutional scholars together to write a piece that I'm going to deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people, unless we're attacked or unless there is proof that we are about to be attacked.
   And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him.
   Your exchange with Mr. Matthews was not a slip of the tongue. During a 2007 New Hampshire town meeting, you stated categorically: “I want it on the record, and I want to make it clear. If [President George W. Bush attacks Iran without congressional authorization] I will move to impeach him."
   Your enlightened understanding of the Declare War Clause is reflected in the Committee's collaboration with the late Congressman Walter Jones (R.-N.C.) and Congresswoman Tulsi Gabbard (D-Hawaii) to introduce H.Res. 922 (115th Cong.), and H.Res. 411 (116th Cong.), respectively, to define and to make unconstitutional presidential wars impeachable offenses.
   Article II, Section l, Clause 7 of the Constitution requires you, as a condition of assuming office, to take the following Oath or Affirmation: "I do solemnly swear (or affirm) that I will… to the best of my Ability, preserve, protect, and defend the Constitution of the United States." According to your own longstanding understanding of the Declare War Clause, we expect you, promptly after your inauguration, to inform Congress that the nine ongoing unconstitutional presidential wars will be terminated within 60 days unless declarations of war are enacted before then.
   You can end our constitutional crisis by reclaiming the cornerstone of separation of powers, breaking the vicious cycle of congressional abdication and executive usurpation. By honoring your constitutional understanding, you can begin the long journey back in restoring the intended equilibrium between the two political branches. History will remember you for renouncing an imperial presidency. For that, you will have earned our highest praise and the reverence of our posterity.

Sincerely,
 
John Henry
Chairman
Bruce Fein
Vice Chairman

The Committee for the Republic in The Nation

For 15 years, the Committee for the Republic has been a dissenting voice of sanity and civility in Washington. Read more....

Our Plan to End Presidential Wars

The purpose of the “No Presidential Wars” project is to force Members of Congress to honor their oaths to uphold and defend the Constitution. The project is forward-looking only:  to insure prospectively that both Congress and the President comply with the Constitution’s allocation of war powers—especially the exclusive responsibility of Congress for making decisions that change the condition of the nation from peace to war.  The project refrains from taking up arms against the past.
 
Its lodestar is President George Washington, who presided over the constitutional convention and elaborated about responsibility for war: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject and authorized such a measure.”
 
Up until the present, the fog of war has been chronically matched by a fog in defining war and allocating war powers under the Constitution.  The law should warn before it strikes.  It would be unfair to any President to change the de facto or de jure constitutional rules of the game regarding presidential wars without defining them with reasonable specificity and applying them only prospectively, not retroactively.    
 
The project thus aims to have the House pass a resolution that defines presidential wars under the Constitution going forward and declares them unconstitutional in violation of Article I, section 8, clause 11 (Declare War Clause). The project also aims to remedy unconstitutional presidential wars with a House prospective resolution warning the President that such wars will be deemed high crimes and misdemeanors under Article II, section 4 of the Constitution resulting in his or her impeachment, conviction, and removal from office. 
 
The Constitution’s authors unanimously fastened responsibility for taking the nation from a state of peace to a state of war on Congress in the Declare War Clause. The President was prohibited from initiating war as opposed to responding to a sudden attack against the United States or declarations of war against us by a foreign enemy.  In the latter cases, the decision or actions which change the condition of the United States from a state of peace to a state or war are not those of the President, whom the Constitution distrusts in such matters, but those of a third party with no incentive to concoct excuses for placing the United States on a war footing.
 
Commencing war is excluded from the President’s express or implied powers in Article II. And that was not because it was thought an inherent executive power that need not be enumerated. If that had been the case, the express Article II power to receive Ambassadors and other Public Ministers would have been superfluous.

The Constitution highly disfavors war except in self-defense for manifold reasons.  War sounds the death knell to the rule of law.  As Cicero observed, “[I]n times of war, the law falls silent.”  War legalizes what is customarily first-degree murder, i.e., killings unjustified by reasonably believed imminent threats to life or serious bodily injury.  At present, the President of the United States exercises the power to play prosecutor, judge, jury, and executioner to kill any person on the planet that he decides in secret is an imminent danger to the national security based on secret, untested evidence.  That unchecked executive power is vastly greater than the tyrannical authorities indicted against King George III in the Declaration of Independence.
 
“War is in fact the true nurse of executive aggrandizement. In war a physical force is to be created, and it is the executive will which is to direct it. In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them. In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
 
Congress was chosen as the depositary of the war power because legislative bodies are highly risk-averse talking shops.  Members do not profit politically from war, and their powers vis-à-vis the White House diminish. The Constitution’s authors were convinced that Congress would declare war and change the condition of the nation from peace to war only in response to actual or perceived aggression against the United States.  Experience has proven them right. In 227 years, Congress has declared war in only five conflicts:  the War of1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.

The demarcation line between a President’s constitutional use of military force short of war and use of military force constituting war triggering the Declare War Clause may be drawn prospectively by Congress with manageable specificity that satisfies the due process imperative of fair warning. The House and Senate by concurrent resolution should define war as the employment of military force against a foreign nation or non-state actor beyond what is reasonably necessary to defend or retaliate against their actual or imminent aggression against the United States.  Under this standard, President Ronald Reagan’s 1986 retaliatory bombing raid against Libya’s Muammar Gaddafi for his complicity in a bombing of a West Berlin disco that killed two American off-duty soldiers was not war.  The use of force was reasonably proportional to Libya’s provocation. 

Congress must also define co-belligerency for purposes of the Declare War Clause.  Under international law, a nation’s systematic or substantial supply of war materials, military support (including intelligence or training), military troops or financial assistance in association or common cause with another belligerent would make it a co-belligerent.  It then becomes a legitimate target of hostilities as if it were the belligerent.  The House and Senate by concurrent resolution prospectively should so define co-belligerency accordingly to provide fair warning to the President of when a congressional declaration of co-belligerency will be necessary to comply with the Declare War Clause and avoid impeachment, conviction, and removal from office.

Strict adherence to the Declare War Clause will not make the United States pacifist.  If an external threat genuinely justifies the nation in crossing the Rubicon from peace to war, Congress should easily be convinced by the President to declare war.  Members of Congress collectively represent the people every bit as much as the President does. They have no incentive to stand idly by while their constituents are attacked by an enemy.

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npw_resolution.pdf
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