Monday, December 18, 2017


Something is rotten in the state of the U.S. Constitution’s war powers and the constitutionally prescribed processes for making foreign policy. Since at least the 1950 Korean War, Congress has meekly surrendered them to the president despite the disastrous results. They include nine ongoing gratuitous and endless presidential wars; a climbing $20 trillion national debt; and, the creation of enemies by seeking world domination through force and violence in lieu of example.

In the New Year, the Senate should begin rectification of this constitutional lawlessness by passing a concurrent resolution pursuant to Section 5 (c) of the War Powers Resolution (WPR) that would require President Donald Trump to end our military engagement in hostilities in Yemen in support of Saudi Arabia. The vote would be historic. The last time the Senate defended its constitutional prerogatives over war and peace was in defeating the Versailles Treaty almost a century ago because it would have transferred the war power from Congress to the League of Nations.

At present, the United States, in collaboration with Saudi Arabia and the United Arab Emirates, is engaged in hostilities against an implacable Shi’ite enemy of al Qaeda and the Islamic State of Syria and the Levant (ISIL) in Yemen, i.e., the Houthis. Among other things, the war has implicated the United States in war crimes and crimes against humanity, including hospital bombings and the starvation of up to 7 million men, women and children. Congress has neither declared war nor enacted specific statutory authorization for the President Trump’s use of the U.S. armed forces against the Houthis who are fighting our Al Qaeda and ISIL enemies. That military lunacy is fueled by Saudi Arabia’s agreement to purchase more than $100 billion in weapons from our military-industrial-counterterrorism complex.

The president’s use of the armed forces to engage in hostilities in Yemen against the Houthis is unconstitutional. It is clear as day that only Congress — not the president — can take the nation from a state of peace to a state of war against any other nation or non-state actor. The Constitution’s architects unanimously entrusted the war power to Congress and unanimously withheld it from the president in the Declare War Clause of Article I, section 8, clause 11.

James Madison, father of the Constitution, elaborated 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.”

James Wilson, delegate to the constitutional convention and later Justice of the United States Supreme Court, explained 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.”

Abraham Lincoln added:

“The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

For 70 years, however, Congress has irresponsibly and unconstitutionally surrendered its war power to the President. Members enjoy fence straddling, i.e., permitting the president to commence wars while reserving the right to denounce them if they become political albatrosses.

But the Declare War Clause enshrined in Article I, section 8, clause 11 can no more be excised from the Constitution by congressional cowardice or political expediency or presidential usurpation than can any other constitutional provision, including the impeachment power, the First Amendment right to freedom of speech or religion, the Second Amendment right to keep and bear arms, or the Fifth Amendment protection of private property. The Constitution can be changed only through the amendment process prescribed in Article V.

Section 5 (c) of the WPR, enacted over President Richard Nixon’s veto, empowers Congress at any time by concurrent resolution to compel the President to remove U.S. armed forces engaged in hostilities abroad without a congressional declaration of war or specific statutory authorization. (The war powers act generally disqualifies appropriations acts.) A concurrent resolution, passed by both the House and Senate, is binding without the president’s signature.

The Roman Republic fell when the Roman Senate permitted Julius Caesar to proclaim himself dictator for life. Members of Congress should learn by that example.

If the president or a member of Congress believes our national security justifies a war against the Houthis, they should seek to convince majorities in the House and Senate to vote accordingly.

If members of Congress can’t stand the heat of voting on war and peace, they should resign.

The Declare War Clause is too important to be defended by summer soldiers or sunshine patriots in the legislative branch.

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