If the U.S. gets into the business of congressional ratification of presidentially initiated wars, it will continue the slow and inexorable normalization of presidential force, writes Andrew P. Napolitano. That’s not what the Constitution requires.
President Donald Trump overseeing “Operation Epic Fury,” the U.S. attack on Iran, at Mar-a-Lago, Palm Beach, Florida, on Sunday. (White House /Daniel Torok)
Over the past weekend, some apologists for President Donald Trump’s recently ordered attacks on Iran argued that because Trump’s plans call for a quick strike, the attacks do not constitute a war. George Orwell is vindicated yet again.
These apologists believe that calling a war something else means it is not a war, and so moral and constitutional justifications are unnecessary.
No rational observer looking at 2,000-pound bombs being dropped on military targets and thousands of missiles being fired indiscriminately at both civilians and military personnel in Iran can conclude that these events constitute anything but a war.
That recognition triggers a series of analyses — moral, constitutional and legal.
The moral dimension addresses both the causes and the conduct of war.
The standard requirements for a just war are that war is a last resort to avoid truly imminent violence or profound massive injustice. It must be triggered by a legitimate authority, its purpose must be clear and just, and the damage it produces must not outweigh the evil it purports to eliminate.
Its conduct must avoid killing non-combatants, and the weapons and tactics used must be proportionate to the war’s objectives.
Just war, of course, prohibits the employment of any weapons that fail to discriminate between combatants and non-combatants.
Trump’s war in Iran fails all these. It was not commenced by a legitimate authority as Congress has not declared war on Iran. The president and his folks have not identified any imminent violence Iran was about to inflict upon the U.S.
They have confused the public on the war’s purpose. Is it to force out the current Iranian government or to destroy its offensive weaponry and nuclear capabilities or — the newest condition — to eliminate its navy?
None of these is a just cause as the U.S. has no moral or legal basis for removing a foreign government or emasculating it in the face of its enemies. As for damage, we have seen already the killing of 150 little girls while at a school last weekend and the attacks on a Tehran hospital.
The funeral on Tuesday for the victims of the U.S.-Israeli attack on the Shajareh Tayyebeh girls’ elementary school in Minab, Iran. (Tasnim News Agency/ Wikimedia Commons/ CC BY 4.0)
The failure of Trump’s war to comply even minimally with moral standards is also exemplified by the constitutional implications raised by a presidentially initiated war. When James Madison and his colleagues were addressing the war clauses in the Constitution, they were in easy agreement that if the president could both declare war and wage war, he wouldn’t be a president, he’d be prince.
Hence the textual separation in the U.S. Constitution of war-making from war-waging. Only Congress can declare war and only the president can wage war. This is the power to initiate war, not to ratify it after the president has initiated it.
The president can request of Congress a declaration of war, but the decision to start one is textually confined solely to Congress.
If we get into the business of congressional ratification of presidentially initiated wars, we will continue the slow and inexorable normalization of presidential force. That’s not what the Constitution requires.
Threat to a Constitutional Republic
This is not a rhetorical or theoretical argument. We live in a supposed constitutional republic. The Constitution is supposed to be the supreme law of the land. It is the sole source of power and authority for Congress, the president and the federal courts.
If it can be violated or ignored in a matter as grave as that which results in the industrialized deaths of foreign persons at American hands and similar deaths of Americans at foreign hands, then it is of little value as the creator and restrainer of the federal government.
Even the 1973 War Powers Resolution, which requires reporting to the Congress within 48 hours of the onset of presidentially initiated military hostilities, contemplates the use of the military when a threat to the U.S. is imminent. This raises two issues.
First, the administration has not articulated with credibility any imminent threat. The secretary of defense has said, at best, that Iran has ambitions to attack the U.S. one day. That is hardly an imminent threat.
An imminent threat must articulate a rational basis rooted in immediacy and grounded in the emergent need to protect U.S. national security. It cannot be speculative.
General Dan Caine, chairman of the Joint Chiefs of Staff, and Secretary of War Pete Hegseth listen as Trump oversees attack on Iran at Mar-a-Lago, Palm Beach, Florida, on Sunday. (White House photo by Daniel Torok)
Second, the statute requires that the president report in writing the reasons for war to the full Congress so it can approve or disapprove.
Trump sent a political diatribe to Congress with no articulation of immediacy, but he did so only after he had his secretary of state report in secret on immediacy to the Gang of Eight — the congressional and intelligence committees’ leadership from both parties.
But the Gang of Eight is not the Congress. And because these reports were made in secret, the eight recipients of them cannot inform their congressional colleagues or the media or their constituents. What kind of representative government is that? What did the secretary of state tell these eight members of Congress?
What’s going on here?
What’s going on is an immoral, unconstitutional and illegal war of choice.
It violates the Geneva Conventions and the United Nations Charter, all treaties which the U.S. wrote and which the U.S. Senate ratified. The former requires conformity to just war principles and prohibits killing little girls and hospital patients.
The latter prohibits war between member states unless to avoid imminent violence or with the consent of the U.N. Security Council. Under the Constitution, treaties are the law of the land.
These are dangerous times and this is a dangerous war — for the moral order, for constitutional government and for personal freedom. If the president can get away with killing people abroad under a scheme that meets no accepted moral or legal standards and violates the plain language of the Constitution, what can he get away with at home?
We might find out. The problem with going abroad searching for monsters who have ambitions to harm you 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 here.
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.
Back before the Voting/Civil Rights Acts, segregationist Ds would go full scorched-earth whenever anti-Jim Crow laws were proposed. They would literally filibuster EVERYTHING – procedural, rules unrelated legislation – preventing ANY business from being conducted until the offending bill was dropped.
Where are they now? They were invited to join the Rs by Nixon, and they did.
We are looking into it .
Only one of us knows and not sure which one .
The forked truth you see , its two of us speaking , your ears can see ?
One by one both agree , your two eyes can’t disagree ?
psychopaths
When the prez openly accepted billion dollar bribes I knew the constitution was a dead duck.
Perhaps the wicked ZioFascist war agenda faces imminent “total annihilation”. Perhaps the leading indicator – one on a growing list of clear, deafeningly loud, blindingly flashing indicators – pointing to the wicked ZioFascist war agenda’s imminent destruction is a growing number, now in the many millions across the Earth, demanding an immediate answer to their perfectly relevant, entirely legitimate, immeasurably important question:
“Who Murdered 168 Iranian School Girls?”
so we have moved from
a just war … to just war.
standard operating procedure.
ST.O.P.!
What can one say ,the constitution was written and accepted as a supreme directive for the Republic of the United States .It’s violation demands repudiation of any transgression ,regardless of the who the transgressor is .
This declaration of war through rhetoric and half truths should be met with demands of impeachment .Period .
“If the president can get away with killing people abroad under a scheme that meets no accepted moral or legal standards and violates the plain language of the Constitution, what can he get away with at home?
We might find out.”
No ‘might find out’ about it! The military and intelligence services are killing people abroad…and versions of these institutions are killing people at home. And the administration cabal is getting away with it.
For reference, the Vietnam war was 20 years long with nearly 10 years of direct US involvement. Afghanistan/Iraq began in 2001/2003 and is just now petering out, more from exhaustion than public rejection. The present moment isn’t really the beginning of a new Middle East war, but seems more preventative of the same sort of long term process.
This administration has made it clear that legalisms are simply words on paper, while bullets and brute force have substantive reality; and that is the reality that will be acted on until some sufficiency forms to stop it (or until it so corrupts itself that it self-immolates).
‘representative’, not ‘preventative’’
Is this situation new ? I have been told that most wars the US made were not decided by the Congress. 1917 being an exception.
The rule of law has been chipped away at for decades in the US and its vassal states have followed suit. Why might we ask? Democracy and the rule of law are too inconvenient to colonialist expansion and the capitalist need for new markets to exploit. The latter being the root ideology of white supremacist colonizers. This so called “constitutional republic is collapsing from its own contradictions. We can’t be both law abiding and criminal at the same time which our government has tried to be. It was never going to work for the long term. The criminality has won. Unless the public decides to force change by shutting the lethal clown show down.
You raise an important point The rule of law has conveniently been ignored for decades, and the collapse of the constitutional republic has been happening for years. The current regime in Warshiton is putting the finishing touches and icing on the cake on exposing the US as a rogue, lawless empire. It should be glaringly obvious by now, with the stereotypical Ugly American emperor.
And if folks think that Elections Inc. is going to bring a change to US policy, they got another thing coming. Both parties demonize Iran, both support Israel unconditionally, both support the perverted health insurance extortion system, both support war crimes, both support institutional corruption, legalized political bribery etc. The US empire is slowly collapsing and the current regime will expedite that.
As a patriotic American, I can only hope.
US is currently in a full-blown Constitutional-crisis, the Republic having one foot in the grave and the other on a banana peel. Congress’ duty under the Constitution when confronted by a lawless, rogue Chief Executive, is to impeach, CONVICT & permanently remove from office. Congress has long been dominated by careerists who want the pay, perqs & honors of their position with none of the responsibility. They’re not just cowards now, THEY ARE TRAITORS!!! Until they do their suty, they’re stealing their salaries.
The new & improved Messiah has already proven he can rule by Royal Decree (EO) with no pushback from them & little from the corrupt, packed Courts. Allowed to get away with gross criminality in the Caribbean & Venezuela, like other totalitarians he went even further with Iran, not even bothering to inform Congress (who needs them?), let alone getting permission (War Powers Act unconstitutional, no mechanism explicitly allows for one branch to delegate authority to another) or a Declaration of War as mandated by Constitution. All Armed forces always have the right to defend themselves from attack, but we are now on the wrong side, being the unprovoked sneak attackers.
Even worse, he now knows with absolute certainty that he doesn’t have to cancel or otherwise interfere with the mid-terms. He just proved he has enough support in the military to attack Congress & arrest everybody – they will obey any order he gives, no matter how illegal, so it no longer matters to him who wins.
Wars cost a lot of money, and this US ‘Operation Epic Fury’ will be the most expensive in History.
It will lead to the FIRE and FURY the President threatened in his 1st term. Most probably he was not aware he was echoing the Prophecy of the last great Jewish Prophet Isaiah, recorded in the last chapter of his Book.
For, behold, the LORD will come with FIRE, and with his chariots like a whirlwind, tor render his anger with FURY, and his rebuke with flames of FIRE. For by FIRE and by his sword will the LORD plead with all flesh: and the slain of the LORD shall be many. Isaiah 66
If you have any doubts about that, The Kansas City Times was quoting me after the 1976 Republican National Convention left town, publishing a followup to the September 13,1976 newspaper record on ALL SOULS DAY DAY, November 2,1976.
It was 7 Years to the month later, when THE DAY AFTER movie appeared on November 20, 1983 showing Kansas City incinerated in a Nuclear Holocaust as a Sign of the Times, pausing at the exact same picture frame published by The Kansas City Times 7 years earlier, warning of the Path this World is headed toward Today.
Operation Epic Fury is being waged on BORROWED MONEY when the current US budget deficit is already $1 TRILLION, ensuring American Carnage on American streets Trump mentioned in his 1st Inaugural address.
Chronicle and Signpost: Ray Joseph Cormier-SIGNS OF THE TIMES
Posted on February 13, 2025 by Ray Joseph Cormier
hxps://rayjc.com/2025/02/13/chronicle-and-signpost-ray-joseph-cormier-signs-of-the-times/
Let us stipulate to the Left that this war is Illegal, Unjust and Unconstitutional. The question is … what are you going to do about it? Are you marching on the Pentagon in anger? Are you downing tools and not buying anything in a General Strike? What are you doing about it? Are you organizing?
Here’s a hint of what the Opposition used to be like back when they could stop a war ….
“that brings me to the second mode of civil disobedience. There’s a time when the
operation of the machine becomes so odious, makes you so sick at heart that you can’t take
part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and
upon the wheels, upon the levers, upon all the apparatus — and you’ve got to make it stop! And
you’ve got to indicate to the people who run it, to the people who own it — that unless you’re
free the machine will be prevented from working at all!! ”
— Mario Savio, Berkeley Free Speech Movement, 1964.