Constitutional Lawyer and Author
Congress should enact a No Presidential Wars statute that defines “presidential wars;” declares them contrary to the Constitution’s Declare War Clause; and, makes presidential wars prospectively impeachable high crimes and misdemeanors justifying removal from office under Article II, section 4.
This will make America great, prosperous, and invincible against aggression faster and surer than any alternative. The United States is currently engaged in nine presidential wars: Libya, Somalia, Yemen, Syria, Iraq, Afghanistan, Pakistan, Al Qaeda, and ISIS. Every soldier involved in these engagements should be redeployed to the United States with enhanced pay for invincible self-defense. The fully allocated cost of fighting presidential wars since 9/11 approaches a staggering $10 trillion.
War is the oldest scourge of mankind.
It turns children into orphans, wives into widows, and makes fathers bury sons rather than sons bury fathers.
It silences the law, crushes liberty, aggrandizes executive power, spirals debt, diverts genius from production to destruction, promotes secret government, precipitates blowback, and afflicts our own soldiers with PTSD generated suicides. Alexis de Tocqueville observed in Democracy in America, “All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.”
Thousands of years of history taught the Constitution’s authors that the executive would be predisposed towards war to enhance power, to excite patriotic support, to operate secret and unaccountable government, and to leave a legacy.
In contrast, the legislative branch is a highly risk-averse talking shop which will only take the nation from peace to war in response to actual aggression against the United States. Gratuitous wars have nothing in them for Members of Congress. Their powers and stature are eclipsed by an omnipotent president. They win no fame or remembrance. Congress has declared war in only five conflicts since its birth 227 years ago, and only when Members were convinced the United States had been attacked.
Everyone who participated in the drafting, debating, and ratifying the Constitution highly distrusted the presidency in matters of war and peace. They unanimously entrusted to Congress exclusive responsibility for taking the nation to war in Article I, section 8, clause 11 of the Constitution. The authors did not believe the power of the purse would be sufficient to prevent presidential wars. They knew once the president commits troops, Members of Congress would be forced to provide funding under the banner of patriotism. The universal sentiment was expressed by James Madison in a letter to Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.”
Despite the clarity of the constitutional prohibition, presidents have chronically decided to take the nation from peace to war since at least President Harry Truman’s decision to fight the Korean War in 1950 without a congressional declaration. Fueled by a multi-trillion dollar military-industrial-counterterrorism complex, presidential wars have come to dominate the nation’s budget and agenda. The warfare state has given birth to the surveillance state, the bail-out state, and the welfare state. The federal government has ballooned into a $4.3 trillion Leviathan.
Congress and the American people have generally ignored the lawlessness of presidential wars and the havoc they have wrought both at home and abroad. We are imitating all previous empires in our enthusiasm for self-ruination. Presidential wars have become de facto constitutional. This must change.
Through a No Presidential Wars statute, Congress needs to establish rules defining and sanctioning presidential wars prospectively. The law should warn before it strikes. And nothing good can come from taking up arms against history.
Presidential wars should be defined as wars in which the President decides to take the United States from a state of peace to a state of war. It should not include wars in which Congress has decided itself to take the nation from peace to war. Neither should it include cases in which the President responds with proportionate military force in national self-defense against actual or imminent aggression or a declaration of war against the United States by a foreign nation or non-state actor. But presidential wars should include cases in which the President unilaterally decides to make the United States a co-belligerent in an ongoing war by systematically or substantially supplying one of the warring parties with war materials, military troops, trainers or advisors, military intelligence, financial support or its equivalent. Presidential wars should further be defined to include cases where an incumbent continues an unconstitutional presidential war commenced by a predecessor.
The “No Presidential Wars” statute should also declare that a violation will be deemed a high crime and misdemeanor under Article II, section 4, and will cause the President to be impeached by the House, convicted by the Senate, and removed from office.
It would mark the Constitution’s finest hour, and save the Republic from destruction.
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Original: Huffington Post
This letter is from 38 Members of Congress to President Clinton, which he ignored after he tried and failed to obtain a declaration of war.
In February of 1999, as the rhetoric of possible United States use of force against the Federal Republic of Yugoslavia began to reach a crescendo, Congressman Tom Campbell and thirty-eight other members of Congress sent the following letter to President Clinton:
February 19, 1999
Honorable William Jefferson Clinton President of the United States The White House Washington, D.C.
Dear Mr. President:
We have serious constitutional concerns about recent reports that you are planning military intervention in the Kosovo region of Yugoslavia, and again respectfully remind you that the Constitution requires you to obtain authority from Congress before taking military action against Yugoslavia.
As we stated in our letters of August 4, and October 2, 1998, military intervention by U.S. forces into the war-torn region of Kosovo in order to stop attacks by Serbian forces against civilians and halt the fighting with the Kosovo Liberation Army in an area the United States recognizes as sovereign Yugoslav territory cannot be construed as "defensive" action within your inherent authority as Commander-in-Chief. Rather it would involve military actions against territory and air space which has not been the source of an attack on the United States. This action falls within the exclusive powers and responsibilities of Congress under Article I, Section 8, of the Constitution--the war powers clause. No provision of the United Nations Charter or the North Atlantic Treaty can override the requirement of United States domestic law as set forth in the Constitution. In fact, Congress conditioned U.S. participation in both the U.N. and NATO on the requirement that Congress retain its constitutional prerogatives.
The Constitution compels you to obtain authority from Congress before taking military action against Yugoslavia. In earlier correspondence, dated January 15, 1999, your National Security Advisor cited previous uses of force in Bosnia and Somalia as examples of authority to conduct offensive military operations in this case. The examples are inapposite as none involve sending military forces into a foreign country's territory contrary to the will of the recognized government of that foreign country. Furthermore, past violations of constitutional duty form no justification for additional violations. Nor does consulting with a few Members of Congress satisfy the constitutional obligation to obtain the approval of Congress.(1)