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.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
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)
Constitutional Lawyer and Author
War is the greatest scourge of mankind. Unsentimental Civil War General William Tecumseh Sherman remarked: “I am tired and sick of war. Its glory is all moonshine. It is only those who have neither fired a shot nor heard the shrieks and groans of the wounded who cry aloud for blood, for vengeance, for desolation. War is hell.”
War not only kills and maims on an industrial scale, it also destroys liberty by creating an Executive Leviathan. James Madison presciently taught:
“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 honours 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 honourable 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.”
Since war is hell, the United States Constitution champions peace except in self-defense. It does so by exclusively entrusting Congress with decisions to cross the Rubicon from peace to war. Thus, Article I, section 8, clause 11 gives Congress power “to declare war.” Its authors knew the congressional personality would be highly risk-averse or timid, which would deter declarations except in cases of actual or perceived aggression against the United States itself. James Wilson, delegate to the constitutional convention and future Justice of the Supreme Court, elaborated to the Pennsylvania ratification convention:
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives....[which is elected every two years by the people]”
The Constitution prohibits congressional evasion of its responsibility for war and peace by delegation to the Executive Branch. It would condemn a statute authorizing the President to initiate war whenever the White House believes the public interest requires it. The Constitution’s separation of powers is intended to safeguard liberty irrespective of the willingness of one branch to surrender its powers to another. Chief Justice John Roberts explained in Wellness Int’l Network Ltd v. Sharif (dissenting): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers therefore does not mitigate the harm or cure the wrong.”
More than 225 years of experience under the Constitution have vindicated its expectation that Congress will declare war only in self-defense. Congress has done so on but five (5) occasions, and each was a response to actual or perceived aggression against the United States itself.
1. War of 1812. Congress declared war against Great Britain after receiving a war message from President James Madison. It asserted, among other things, that the British had committed acts of war against the United States; had kidnapped thousands of American sailors from American flagged ships sailing on the high seas in violation of international law; had plundered neutral American merchant ships; had spilt the blood of American citizens within our territorial jurisdiction; and, had provoked Native American Indian savagery against American civilians.
2. 1846-48 Mexican-American War. Congress declared war against Mexico after receiving a war message from President James K. Polk claiming that the Mexican military had declared war against the United States, had killed or wounded 16 American soldiers on American soil, and had taken scores of others prisoner. (In fact, American soldiers had not been killed on American soil, but Congress acted on the assumption that they had).
3. 1898 Spanish-American War. Congress declared war on Spain after receiving a war message from President William McKinley claiming that hostilities between Spain and Cuba were causing American deaths and the destruction of American property. The President also insinuated that Spain was responsible for the explosion of the Maine in Havana harbor and the consequent deaths of hundreds of American sailors and marines. He amplified:
“The destruction of that noble vessel has filled the national heart with inexpressible horror. Two hundred and fifty-eight brave sailors and marines and two officers of our Navy, reposing in the fancied security of a friendly harbor, have been hurled to death, grief and want brought to their homes, and sorrow to the nation.
The Naval Court of Inquiry, which, it is needless to say, commands the unqualified confidence of the government, was unanimous in its conclusion that the destruction of the Maine was caused by an exterior explosion, that of a submarine mine. It did not assume to place the responsibility. That remains to be fixed.
In any event, the destruction of the Maine, by whatever exterior cause, is a patent and impressive proof of a state of things in Cuba that is intolerable. That condition is thus shown to be such that the Spanish government cannot assure safety and security to a vessel of the American Navy in the harbor of Havana on a mission of peace, and rightfully there. . . .”
4. World War I. Congress declared war against Germany after receiving a war message from President Woodrow Wilson asserting that Germany had made war on the United States, and that “American ships have been sunk, American lives taken, in ways which it has stirred us very deeply.” He maintained that Germany had put us in a state of war, and was asking Congress to act defensively:
“I advise that the Congress declare the recent course of the Imperial German Government to be in fact nothing less than war against the Government and people of the United States; that it formally accept the status of belligerent which has thus been thrust upon it, and that it take immediate steps not only to put the country in a more thorough state of defense but also to exert all its power and employ all its resources to bring the Government of the German Empire to terms and end the war.”
5. World War II. Congress declared war against Japan after receiving a war message from President Franklin D. Roosevelt advising that a state of war existed because of Japanese naval and air attacks against the United States.
Since World War II, no President has asked Congress for a declaration of war. The White House either initiates wars on its own, or asks Congress to authorize the President to decide whether and when to go to war through unconstitutional delegations of the war power.
Presidents have done so because they know Congress will not declare war against any foreign country or non-state actor except in response to war already commenced against the United States itself. None of our multiple wars since World War II has been in self-defense, and none has been declared by Congress, for example, Korea, Libya, Bosnia, Kosovo, Somalia, Iraq, Afghanistan, Syria, Al Qaeda, the Islamic State of Iraq and Syria. The 9/11 abominations were not acts of war by a non-state actor, but industrial scale murder. Accordingly, the 20th hijacker, Zacarias Moussaoui, was tried and convicted in a federal court of, among other things, conspiracy to commit acts of terrorism and conspiracy to murder. He was not accused of war crimes. The 2001 Authorization to Use Military Force (AUMF) declines to characterize the 9/11 crimes as a war of aggression against the United States. The text references “treacherous violence” and “grave acts of violence.”
Our multi-trillion dollar warfare state can be ended by following rather than flouting the Constitution’s allocation of war powers. We need presidential candidates who will sign “no presidential war” pledges, congressional candidates who will pledge to impeach a president for initiating presidential wars, and voters who will boycott presidential and congressional candidates who refuse to make these respective pledges. There are no better ways to avoid the scourge of war.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post
5 Myths About The Constitution’s War Powers Propagated By The ‘New York Times’ And The ‘Washington Post’
Constitutional Lawyer and Author
The Constitution’s architects unanimously agreed on the allocation of war powers. They unanimously agreed that only Congress should be entrusted with decisions to initiate war under Article I, section 8, clause 11. (The President would retain authority to “repel sudden attacks”).
The architects made Congress the exclusive steward of the war power because legislators have nothing to gain and everything to lose by gratuitous belligerency. No war monument has ever been erected to immortalize a legislator; and, the powers of Congress recede during wartime.
The opposite is true of the executive branch, whose personality salutes Mars and scorns Minerva. James Madison, father of the Constitution, elaborated:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. 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 honours 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 honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Future Chief Justice of the United States, John Jay, similarly remarked in Federalist 4:
[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.
The reasons advanced by Madison, Jay, and others against presidential wars did not pivot on the state of weapons technology or speed of travel, but on eternals of human nature, including the incorrigibility of the executive branch in craving war for the sake of war with ulterior motives pernicious to liberty.
In serving as megaphones for an extra-constitutional American Empire and multi-trillion dollar permanent global presidential wars, the New York Times and the Washington Post propagate myths about the war powers worth more than two carrier battle groups to the Pentagon.
Myth 1: Article II of the Constitution empowers the President unilaterally to initiate war—including nuclear war—without a legislative mandate enacted by Congress.
Article I, section 8, clause 11 of the Constitution unambiguously entrusts to Congress—not the President—exclusive responsibility for deciding to take the nation from a state of peace to a state of war. Every participant in the drafting, debating, and ratifying of the Constitution shared that understanding, including George Washington, Alexander Hamilton, James Madison, father of the Constitution, future Justice of the Supreme Court James Wilson, United States Chief Justice John Marshall, Thomas Jefferson, and John Adams. James Madison expressed the national consensus in a letter to Jefferson: “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.” That consensus was neither disturbed nor violated for 163 years. Beginning in 1802, for instance, Congress enacted ten statutes expressly authorizing military action by Presidents Jefferson and Madison against the Barbary States. That consensus also shipwrecked President Woodrow Wilson’s League of Nations’ treaty, which would have obligated the United States to defend the boundaries of other nations without congressional declarations of war. To obtain Senate ratification of the United Nations Treaty, Article 43, paragraph 3 specifically requires a congressional declaration of war before the President may use our armed forces to implement a U.N. Security Council resolution. From Potsdam, President Harry Truman cabled Senator Kenneth McKellar: “When any such agreement or agreements are negotiated [to use the United States Armed Forces under Article 43 of the United Nations Treaty] it will be my purpose to ask Congress for appropriate legislation to approve them.”
In sum, there is no intellectually respectable support for the theory that the Constitution authorizes presidential wars.
Myth 2: Treaties ratified by the United States Senate can constitutionally obligate the United States to conduct war on behalf of foreign nations without a congressional declaration of war.
Treaties are subordinate to the United States Constitution, including Article I, section 8, clause 11. Justice Hugo Black elaborated in Reid v. Covert (1956):
“Article VI, the Supremacy Clause of the Constitution, declares:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates, as well as the history that surrounds the adoption of the treaty provision in Article VI, make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution...to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.
Accordingly, Article V of the 1949 North Atlantic Treaty Organization (NATO) which purports to require to the United States to defend all 28 NATO members from attack, including Estonia, Latvia, and Lithuania, is unconstitutional. The House of Representatives is excluded from the treaty process, and its concurrence is necessary for a congressional declaration of war. James Wilson, future Justice of the United States Supreme Court, underscored the importance of that requirement to the Pennsylvania ratification convention:
“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large;—this declaration must be made with the concurrence of the House of Representatives; from this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.”
Article V of NATO marked the first occasion in 163 years in which a treaty purported to require the United States to conduct war on behalf of other nations without congressional declarations.
Myth 3: Unconstitutional presidential wars have become constitutional by dint of longstanding practice beginning in 1950 with President Harry Truman’s war in Korea without a congressional declaration.
Constitutional transgressions are not excused because they have been repeated for long years. The United States Supreme Court held in Erie Railroad v. Tompkins (1936) that for a century since Swift v. Tyson (1842) federal courts had been unconstitutionally creating federal common law to govern lawsuits between citizens of different states. The Court similarly held unconstitutional the use of the legislative veto to invalidate executive action in INS v. Chadha (1983), notwithstanding hundreds of such provisions enacted during the previous 54 years with the consent of the President.
The Court explained in Myers v. United States (1926) that great weight is to be given to the practices and understandings of early administrations and Congresses populated by many who had participated in the 1787 constitutional convention. They were uniformly against presidential wars. President George Washington, who presided over the 1787 convention, voiced the standard view: “The Constitution vests the power of declaring war with Congress. Therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”
Myth 4: Presidential wars are constitutionally permissible because Congress repeatedly acquiesces.
It is true that presidential wars without congressional declarations have been chronic since 1950, including but not limited to: President Truman’s war in Korea; President Lyndon Johnson’s Vietnam War; the Secret War in Laos conducted by Presidents Johnson and Richard Nixon; President George H.W. Bush’s war in Panama; President William Clinton’s wars in Bosnia and Serbia; and, President Barack Obama’s wars against Libya and the Islamic State of Iraq and the Levant (ISIL) anywhere on the planet. And it is equally true that Congress has generally acquiesced in these usurpations because terrified of being held politically and morally accountable for matters of supreme significance to the nation and our armed forces. But the Supreme Court has held that the Constitution’s separation of powers does not permit one branch to surrender its powers to another branch, for instance, a line-item veto invalidated in Clinton v. New York (1998). Chief Justice John Roberts elaborated in Wellness International Network, Limited v. Sharif (2015): “[W]e have emphasized that the values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. A branch’s consent to a diminution of its constitutional powers, therefore does not mitigate the harm or cure the wrong.”
Myth 5: The President is entitled to flout the Constitution’s allocation of war powers and conduct presidential wars because changes in technology and the obligation of the United States to exercise world leadership have made the Constitution obsolete in foreign affairs.
The Constitution’s authors were long-headed. They knew experience and unforeseeable changes in circumstances might dictate a need for constitutional alterations or adaptations. Thus, Article V was written to authorize amendments supported by two-thirds majorities in Congress and three-fourths of the state legislatures. The very first Congress proposed the Bill of Rights, which was ratified by the States. No amendment has ever been proposed, however, to disturb the Constitution’s assignment to Congress of exclusive responsibility for decisions to cross the Rubicon from peace to war.
Justice Black denied that the mushrooming United States role in international affairs since the Constitution was ratified in 1787, simpliciter, authorized the exercise of extra-constitutional powers in Reid v Covert:
If our foreign commitments become of such nature that the Government can no longer satisfactorily operate within the bounds laid down by the Constitution, that instrument can be amended by the method which it prescribes. But we have no authority, or inclination, to read exceptions into it which are not there.
All Empires create myths to conceal or expiate lawlessness, cruelties, or double standards. Thus, the Roman Empire turned enemy territories into wilderness and called it peace. The American Empire turns the Constitution’s war powers into a jumble of political calculations with ulterior motives and calls it law. The more things change, the more they stay the same.
Follow Bruce Fein on Twitter: www.twitter.com/brucefeinesq
Original: Huffington Post