Congress has not declared war on Iran; nor has it authorized the use of U.S. military forces against it, writes Andrew P. Napolitano. Yet the White House says it is sending around 100 troops to Israel.
U.S. President Joe Biden, left, at Joint Base Andrews in Maryland, on Oct. 17, on his way to Berlin, with Col. Paul Pawluk escorting him. (White House,Adam Schultz)
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 C.I.A. 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.
Israeli Prime Minister Benjamin Netanyahu takes a selfie with U.S. soldiers during a site visit to the Terminal Altitude Area Defense System in Israel on March 6, 2019. (U.S. Army/ Bethany P. Williams, Defense Visual Information Distribution Service, Public domain)
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.
Vietnam Began The Way
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 percent 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 whom 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.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
I it is well past the time to insure the U.S. Constitution is adhered to. Two words which define the right of each
American to demand the U. S.Constitution be followed, adhered to.
As I pointed out in an earlier post here, this is a serious matter or it means nothing. Adhering to the Constitution is not an elective choice, but instead a requirement.
– All Federal and State Officers must take an oath to uphold the Constitution.
– All Lawmakers must take an oath to adhere to faithfully follow the Constitution.
– All Judges must take an oath to follow the Constitution .
– The President elect must take the Oath of Office as stated in Article II, Section I, clause 8 of the Constitution
– Naturalized Citizens are required to take the oath of allegiance ceremony to beocme an American citizen.
– All military members take an oath to the Constitution.
Now that we have that straight it is time to insist the Constitution be followed to hell with the SCOTUS and other who think they own the rights to the meaning of the Constitution.
The Oath all military members take never expires folks. Guys like Trump, Zionists and NEACONs must realized they are very seriously outnumbered.
There exist much truth in the comments above, truth derived from the Constitution.
Vets stick together. Down with Pax Americana and Up with the power of “we the people”.
This country needs to be repaired and “We the People” are the only ones who can do it.
Now is the time to get started, working outside the system will not work. Electing a president who doesn’t promise dictatorship will be even worse. One the election is over depending on who wins we need to meet here again and decide what the course of action will be.
The constitution is under threat, meaning the republic is under existential threat. . We felt some of the effects of the Biden administration’s use of censorship. It allows propaganda to flow unchallenged, especially with all the media echoing the approved narrative from D.C.
Kamala Harris has promised to enforce censorship. Obama and Hillary, while campaigning for Harris, have stated the First Amendment needs to be altered. A frightening statement.
Just to say thanks for – and long live – Judging Freedom – your show has been a godsend during these insane times.
thank you so much again, judge napolitano,
for your to-the-point analysis of the horrible,
indeed quite frightening state of affairs.
“[…] So, if a foreign power is about to strike — like
on 9/11 or Dec. 7, 1941, while the government slept,” *)
LOOK what they’re doing now that they are wide awake,
CON_vinced that they rule the world.
two cool-headed russian soldiers prevented nuclear wars,
wassili archipov in 1962 and stanislaw petrov in 1983.
today’s military build-ups are horrifying enough even without
the nuclear dimension. 2,000-pound bombs, my goodness!
while in my warmongering EU country not a month goes by
w./o. WWII bombs being dug up in some neighborhood …
the blatant disregard for all the rules they gave themselves
in better times is almost beyond words. who’ll stop them?
or is this just another hopeless situation which leaves us with
only one sentence to say: history will not judge them kindly?
more refuseniks, please, not just in the military!
_____________________________________
*) just like israel chose to ignore warnings before 10/7
Yes ! Rules of War… ridiculous !
Threats to US security which must be countered by war.
In the first 20 years after Putin became Russia’s President the average wage in USA grew by 65%.
In the first 20 years after Putin became Russia’s President the average wage in Russia grew by over 200%.
Russia is a threat because they prove there is a different way of running an economy. Where people are more important.
In the first 20 years after Putin became Russia’s President the average wage in China grew by over 2000%.
So China is a bigger threat.
It’s even worse than the Judge says. Those THAAD batteries are for show–they won’t stop Iranian ballistic missles from getting through. And when some of those missiles do get through, they are going to kill virtually every US soldier manning the batteries. (Ask the US military about this scenario in Ukraine.)The US military HAS to know this. Do those soldiers, standing there with the murderous sociopath Netanyahu, know this? I doubt it. They are there precisely because they WILL be killed, and then the neocons and the Congress will be howling for revenge, and then we get war, a war the US and Israel will lose.
It’s important to understand how all this started. The U.S.wants to weaken Russia so that it could steal its resources. Israel wants to steal land that belongs to the Palestinians. and, in so doing, trod over the U.S. Constitution. Now, the U.S. wants people at the ballot box to agree with them and share its iniquity. How many people would vote at all if they realized that their vote would make them accomplices?
“… the problem with searching the world for monsters to slay is that they have a way of following you home”
This should be engraved in stone upon the facade of the new Senate Chamber in place of the current “Annuit Coeptis”.
True, “The US has no treaty with Ukraine or Israel that will trigger an American military defense”, however the United States is now under the complete domination of Israel and our Constitution has become meaningless. Evidence of this secretive take over first emerged on June 8, 1967 when Israel intentionally attacked and attempted to sink the USS Liberty. 34 on board were killed and 171 were wounded. LBJ ordered the Navy to stand down! Then he ordered a cover up of the entire affair. This has been going on for 57 years! Our country is now threatening to use nuclear arms to protect Israel from the enemies that they have made by their maniacal and selfish behavior. America is being held hostage by the myth of Zionism.
Thanks Judge, your show on YouTube is a beacon of light in a very dark world. You are a true patriot.
Remember GWBush was reported to have said the constitution is just a GD piece of paper. The mask has been off the phony constitutional republic for some time. It’s too inconvenient for the banking class to be encumbered by such quaint notions. All they know is pursuit of wealth and power by any means necessary.
U.S. Attorney General, Alberto Gonzalez memorandum to Dumbya Bush: “In my judgment, this new paradigm [the ‘war on terrorism’] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”
“Russia and Iran pose no credible threats to American national security.”
In fact, who does pose a threat to the U.S.? I think the short answer is, no one. The 800 military bases the Imperium has spread around the planet are there to maintain control over everyone else. China is a “threat” because it is beating the capitalists at their own game, and so we slap tarrifs on anything that they can do better than here in the U.S., such as EVs.
When I was a kid in high school in Miami, the latest developments in the Cuban missile crisis were piped into our classrooms. The world was on edge, and rightfully so. I honestly believe we are now closer to a catastrophic world war than ever.
Instead of having these neo-Con lunatics continue their march to our oblivion, we could use the trillion dollar military budget to address global climate change, eliminate nuclear weapons, and seek a decent standard of living around the world. And good luck with that happening.
$ee – hear!!!!!!
(and thanks to Judge Napolitano, who constantly faces and has been victim of govt. / secrecy agency CENSOR)
You don’t seriously think poor semi-conscious Genocide Joe is running the show, do you? And Kamala is busy with her campaign, while most of Congress has been bought byAIPAC. Israel is simply ordering what it wants and whoever is now running the country sends it. I don’t know who it is but whoever they are their first loyalty is obviously to Israel, or more correctly, to Zionism.
Well said!
Tnx Judge Napolitano, CN.
One question: Which domino is USS Liberty?
Forgotten! Forgotten sadly.
If I was wealthy, I’d sue the bastards!
The Judge is very well-spoken here, with his usual insistent questioning and leadership. This commentary added to the disgrace of 58 standing ovations for Netanyahoo last summer points to the broken nature of a “democratic” system we now have. A plurality of Americans does not support the utter disgrace of bombing Gaza and other targets in the Middle East into rubble and piles of bodies, including women and children. The System is ruled by narratives, or special stories manufactured to favor economic interests, with a broken and dishonest mainstream press, and these narratives do not provide wise guidance on world relations and true dangers. Indeed, those dangers now lie inside The System that has developed to favor a select few. The Judge helps us to SEE this corruption.
To paraphrase Joe Stalin, how many brigades does the Constitution have? How about Congress?
The current American federal government and the voting public have been so radicalised by our extreme militaristic media over the years that a return to the constitution as both you and Judge Napalitano urge seems damned well unthinkable, not only to all the traitors in government, but to most of the general populace as well. Both have been irrevocably corrupted by the “forever war” mentality incessantly pushed by a political faction (i.e., the relentlessly aggressive “bipartisan neoconservatives”) just as George Washington and other founders of the republic had cautioned against. Much to our detriment, we have enthusiastically embraced both political parties and foreign entanglements with a bloody passion! Unfortunately, the electronic mass media and its role in unbounded crass and fallacious propaganda was not predictable yet by science or technology. Our first instinct upon Mr. Morse’s invention of the telegraph was not to immediately imagine new ways to lie, cheat and steal from the people. However, in retrospect, that sure didn’t take long.
Yes, the failure to regulate economic power elevates tyrant militarists who must have wars to demand power as defenders. It has corrupted mass media and all branches of government “to lie, cheat and steal from the people.” As Napolitano notes, the invented monsters follow home the tyrants, ultimately revealed as Trojan horses full of the real enemies of the people, their own tribalism, ignorance, and selfishness.
It is necessary to make a judicial interpretation of war to include wars conducted largely by economic means, including most US wars since Vietnam. These are certainly acts of war.
The same interpretation should be applied to groups that bribe US officials via political parties, who are engaging in economic war against the US, an act properly considered treason.
Bribery is the reason that the U.S. Congress, Executive branch, and Judiciary do not uphold the Constitution.
These are traitors who have taken over the country by means of corrupt economic power.