Tag Archives: Declarations of war

War and the Separation of Powers, by Andrew P. Napolitano

Congress has unconstitutionally abdicated its power to declare war. From Andrew P. Napolitano at lewrockwell.com:

A popular way to begin the first day of class in constitutional law in many American law schools is to ask the students what sets the U.S. Constitution apart from all others. Usually, they answer that it’s the clauses that guarantee the freedom of speech, privacy and due process.

Yes, each of those guarantees — if upheld — is vital to restraining government, but the overarching and most important unique aspect of the Constitution is the separation of powers. The constitutions of many totalitarian countries pay lip service to free speech, privacy and due process, but none has the strict separation of powers that the U.S. does.

Under our Constitution, the Congress writes the laws, the president enforces them and the courts interpret them; and those powers and functions may not constitutionally be mixed or exchanged. The Congress also declares war. The president also wages war. The courts also invalidate the acts of the other two branches when they exceed their constitutional powers.

The Supreme Court has ruled that the separation of powers is integral to the Constitution not to preserve the prerogatives of each branch of government but to divide governmental powers among the branches so as to keep power diffused — and thereby limited and protective of personal freedom.

James Madison, who wrote the Constitution, wanted not only this diffusion by separation but also tension — even jealousy — among the branches so as to keep each in check.

Thus, even if one branch of government consented to ceding an essential power to another branch, such a giveaway would be unconstitutional, the Supreme Court has ruled, because the core functions of each branch of the federal government may not be delegated away to either of the other two without violating the separation of powers.

I am writing about this not as a history or constitutional law mini-lesson but rather because it’s necessary background information to address a real and contemporary problem. Two weeks ago, on the basis of evidence so flimsy that his own secretary of defense rejected it — and without any legal or constitutional authority — President Donald Trump dispatched 110 missiles to bomb certain military and civilian targets in Syria, where the president argued the Syrian government manufactured, stored or used chemical weapons.

To continue reading: War and the Separation of Powers

Congress’s Romance with Cowardice War Without War Powers (the Not-So-New American Way), by Danny Sjursen

Congress abdicated it’s constitutionally mandated war powers long ago. This is a history of congressional cowardice. From Danny Sjursen at tomdispatch.com:

On September 1, 1970, soon after President Nixon expanded the Vietnam War by invading neighboring Cambodia, Democratic Senator George McGovern, a decorated World War II veteran and future presidential candidate, took to the floor of the Senate and said,

“Every Senator [here] is partly responsible for sending 50,000 young Americans to an early grave… This chamber reeks of blood… It does not take any courage at all for a congressman or a senator or a president to wrap himself in the flag and say we are staying in Vietnam, because it is not our blood that is being shed.”

More than six years had passed since Congress all but rubber-stampedPresident Lyndon Johnson’s notoriously vague Tonkin Gulf Resolution, which provided what little legal framework there was for U.S. military escalation in Vietnam.  Doubts remained as to the veracity of the supposed North Vietnamese naval attacks on U.S. ships in the Tonkin Gulf that had officially triggered the resolution, or whether the Navy even had cause to venture so close to a sovereign nation’s coastline.  No matter. Congress gave the president what he wanted: essentially a blank check to bomb, batter, and occupy South Vietnam.  From there it was but a few short steps to nine more years of war, illegal secret bombings of Laos and Cambodia, ground invasions of both those countries, and eventually 58,000 American and upwards of three million Vietnamese deaths.

Leaving aside the rest of this country’s sad chapter in Indochina, let’s just focus for a moment on the role of Congress in that era’s war making.  In retrospect, Vietnam emerges as just one more chapter in 70 years of ineptitude and apathy on the part of the Senate and House of Representatives when it comes to their constitutionally granted war powers.  Time and again in those years, the legislative branch shirked its historic — and legal — responsibility under the Constitution to declare (or refuse to declare) war.

And yet, never in those seven decades has the duty of Congress to assert itself in matters of war and peace been quite so vital as it is today, with American troops engaged — and still dying, even if now in small numbers — in one undeclared war after another in Afghanistan, Iraq, Syria, Somalia, Yemen, and now Niger… and who even knows where else. 

To continue reading: Congress’s Romance with Cowardice War Without War Powers (the Not-So-New American Way)