Article I, Section 8, clause 11
Prior to the June 21 announcement by Donald Trump concerning the bombing of three nuclear sites within a sovereign Iran, I posted on X a plea to the President:
#PresidentTrump Please don't listen to the likes of @seanhannity or @marklevinshow who have been salivating over #unconstitutional overseas interventions for three decades.
If #Israel believes #Iran is a threat to their national sovereignty (which I believe may be the case), they have the right to neutralize and take out their facilities or more. But, it is not our fight.
They are no imminent threat or otherwise to the #UnitedStates. Though Hannity, who has spent hours on his #radio show promoting the US intervention, says we are threatened because people on the streets of #Tehran say "Death to America" among other weak reasons, you should not send one bomber into Iran.
If you believe we need to send a bomber into Iran with a bunker buster, which Hannity is promoting, take it to Congress for a declaration of war.
That's what the #Constitution requires, even Levin, a lawyer, knows that (or at least he should). Let the Congress debate it on the floor and vote. Let @LindseyGrahamSC put his name on a declaration of war for once, since he seems to relish in these many mistakes over the past 2-3 decades.
Besides, the #President has no authority, let me explain:
Article I, Section 8, clause 11 of the Constitution specifically give the Congress, and only the Congress to authority and power to declare war. The last time the United States followed this ever-important part of our law was 83 years ago right after Pearl Harbor.
Article II, Section 2 states the President is the “commander-in-chief of the army and navy of the United States.” This clause clearly gives the President to power to direct the war, not declare it.
Don’t believe me?
Let’s see what Alexander Hamilton said while the President lacks the power to declare war, would have “the direction of war when authorized.”
James Madison said: “. . . The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” and “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 to the Legislature.”
Vesting this power in Congress ensures that the decision to go to war is carefully considered through public debate among elected representatives, who are more directly accountable to the American people.
Hannity and Levin promoted our intervention in #Iraq during the first decade of this century, and even you know how much of a disaster that turned out to be. And arguably, this put Iran into such a position of power in the Middle East.
Follow the Constitution Mr. President.
Of course, three days later Mr. Trump published the following:
This was a Saturday evening and while I don’t typically go on X debating people that time of the week, this was a big enough an issue for me to make an exception.
I had several back and forth episodes that evening on the constitutionality of this military action.
Some would argue about the War Powers Resolution of 1973 as a justification.
They would claim the 1973 war powers resolution authorizes the President to start a war as long as it’s reported to Congress within 48 hours. Then, Congress would have 60 days to authorize the action, or extend it.
The real question would be, “where in the Constitution is Congress given the authority to change the constitution by resolution?”
It doesn’t. And that resolution, in and of itself, is a Constitutional violation.
Then of course is the Authorization to Use Military Force (AUMF), of which their are four—1957 Middle East resolution signed by President Dwight Eisenhower, the 1991 Authorization for Use of Military Force against Iraq (1991 AUMF), the 2001 Authorization for Use of Military Force (2001 AUMF) passed after the 9/11 attacks, and the 2002 Authorization for Use of Military Force Against Iraq (2002 AUMF), none of which have been repealed.
The last two AUMF’s have been used all recent Presidents in a cornucopia of countries, particularly in the Middle East and Africa.
As Mike Maharrey of the Tenth Amendment Center testified before a Maryland House committee in favor of the Maryland Defend Our Guard Act in few years ago:
It’s important to understand that an AUMF is not the same as a declaration of war. It flips the constitutional process on its head by placing decision-making power in the hands of the president. In effect, Congress tells the president, “You decide if we’re going to war and then do it if you want to.” This violates the constitutional separation of powers. Congress is supposed to make that determination. Basically, Congress is passing the buck on its Constitutional responsibility to determine whether or not the US should engage in military operations.
Some would argue, including Lindsey Graham, that Article II gives the President the authority.
Article II, Section 2 states the President is the “commander-in-chief of the army and navy of the United States.”
This clause clearly gives the President to power to direct the war, not declare it.
The designation of commander in chief does not delegate to the president any authority to take America into war, initiate any offensive military expeditions, or unilaterally end them.
People like Hannity would justify it on his radio program by saying every President since the Korean war took action without going to Congress.
I say, of course that is true, but hardly makes it right and does not follow the prescription outlined in the Constitution.
Others claim that Iran was an imminent threat to the United States. Not true. There may have been rhetoric; however, that’s all it was.
BTW, if there’s an attack, neither Congress nor the President is making the decision about peace or war – the attackers did. Totally different scenario.
Concerning the case of an imminent threat, one news source, The Hill, reported:
Given its current level of enrichment, experts estimate it would take Iran a week or two to produce the weapons-grade uranium needed for a nuclear weapon and another few months to build a crude weapon. Then Iran would need to figure out how to deliver the bomb to Israel, more than 1,000 miles away, either fitting it onto a missile, dropping it from a plane, or smuggling it across the border by land.
I say to those calling Iran an imminent threat—Not days away. No ability to attack the US. Can't be an imminent threat if you don't have the capability to carry out the threat. Reminds me of 2003.
Think about it, Pearl Harbor was savagely attacked on December 7, 1941, an actual attack. What did FDR do? The next day he went to Congress for a declaration of war!
What did other founders say?
George Washington said:
“The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.”
In a message to Congress in 1805, President Thomas Jefferson said the following:
“Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”
Just a small sample.
Lastly, while I expect such war promoting rhetoric and disregard of the Constitution from Hannity and Levin and those in political office, it was other so-called “Constitutional conservative” influencers who dropped their constitution loving cloak.
Charlie Kirk tweeted while this was happening:
With the weight of the world on his shoulders, President Trump acted for the betterment of humanity. For the next few hours spare us the arm chair quarterbacking and instead trust our Commander in Chief.
Total disregard for the Constitution.
Conservative commentator, Dave Rubin tweeted:
Again, just a small sample.
Point here is, these and many other conservative commentators have lost all credibility. Why would you listen to them now?
Its amazing the how long the list is of conservatives who say "constitution this, constitution that". I guess the constitution doesn't matter when your guy is in the oval office. As a constitutional conservative, this is a disappointment.
As one person said, and I’m paraphrasing, no matter who is elected President, we always get John McCain.
The bottom line? By using US Military to begin hostilities with a foreign nation without a Congressional declaration of war, George Bush, Bill Clinton, Barack Obama, Joe Biden and Donald Trump have committed a serious violation of the Constitution. While Trump certainly is not the first to do so in regards to war powers, it’s high time that he becomes the last.
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