Preserving American Values

Because taking our country into war has the potential if not the likelihood, even in modern warfare, of costing the bodies and lives of American soldiers as well as disrupting the economy, this is an important question. 

The Constitution is the guide to answering this question. The Constitution clearly states that Congress has the power to declare war.  The President does not have that power.  

The War Power Resolution of 1973, passed by Congress, recognizes that distribution of power by saying that a President can only order military into an existing or imminent hostility if Congress has declared war or specifically authorized the President to use military force, or there is a national emergency created by an attack on the U.S. 

The drafters of the Constitution and the War Powers Resolution thus made a distinction between making a reasoned decision to go to war and having to react quickly when attacked.

The Executive Branch has, however, consistently held over the years that this limitation of the power of the President only applies to “full-scale” war.  

So the question is, is there a difference between a full-scale war and some lesser war in interpreting the Constitution? Since this is a definitional issue, I would say that hostilities are a war in the constitutional sense when they meet the legal dictionary definition. If it looks like a war, if it sounds like a war, if it moves like a war, it is a war.

According to Black’s Law Dictionary, war is “armed conflict by forces of sovereign powers.” War does not exist merely by one nation attacking another, but when the other nation responds whether by a declaration or otherwise indicating it feels it is at war. War is a conflict..

Under that definition, we are definitely at war with Iran.  Note that the legal definition of war has nothing to do with the size of the conflict or its duration: full-scale v small-scale. It also does not depend on the formal declaration of war.

So in the past, when a President has ordered U.S. forces to attack a country and that country has not responded in kind, those instances have not been “war”—there has been no “conflict”—and so the President was arguably within his constitutional powers in conducting the hostilities. Trump’s actions against Venezuela would fall into this category.  But when the attacked country has responded in kind, as is the case with Iran, then a state of war exists, regardless of the double talk engaged in by the DOJ’s Office of Legislative Council.

NOTE: The 1973 War Powers Resolution would restrict the President from starting hostilities even in a “non-war” situation like Venezuela. He could only engage in hostilities without authorization if the U.S. was attacked. But the Resolution is not law. I would argue that this is the correct approach because when attacking a country, the reasonable assumption should be that the country will resist and respond in kind, resulting in a war.

Conservative “originalist” legal scholars look to what the words in the Constitution meant at the time it was drafted to settle interpretation questions.  In the 17th and 18th centuries, war between the European countries was not uncommon. They involved military conflict between 2 or more countries, usually to gain territory and into the early 18th century over religion. Whether larger or smaller in scope, these were all wars.

In those times, all countries were ruled by monarchs, and so the decision whether to go to war was made by the monarch. When countries went to war, it was for the glory and financial benefit of the monarch. But these wars caused much misery for the general population and were much in the mind of the Founders when the Constitution was drafted.  

It was because of their knowledge of the religious wars that the Founders were adamant that there be a separation of church and state, that there be no established religion. And it was because of their knowledge of the arrogance of monarchs in going to war to obtain glory or riches at the cost of the lives and well-being of their people, that the Founders wrote into the Constitution that only Congress had the authority to declare war; no longer would a single individual be able to wreak such havoc on the people. And indeed, initially that was how the Constitution was interpreted.

The New York Times reported that Republicans in Congress have been tripping over themselves determined not to call the conflict with Iran a war.  Yet from what I’ve presented, it very clearly is war in the meaning of the Constitution, whether looked at from an originalist point of view or a contemporary one.

Here is yet another example where Trump has violated the terms of the Constitution.  And he clearly doesn’t care.  Not only that, he also has not shown respect for the American people that past Presidents have shown by speaking directly to the people and explaining why he was taking this serious step.

Once again, the arrogance of Trump proves how prescient the Founders were in crafting the Constitution with a balance of power to prevent abuses by any of the branches of government.  And that system has worked … until now. It is only because the Republicans in Congress and many Trump-appointed members of the judiciary have violated their oath of office that the system is not working now and Trump’s abuses of power go unchecked.

We live in a democratic republic. Laws are all determined by the legislature, as the representative of the people. For the most part, the Executive Branch—including the President— must act within the bounds set forth in legislation unless power is granted directly by the Constitution. Going to war—committing both the lives of American soldiers and America’s wealth—is a weighty decision that, unless we are attacked, should be made with great deliberation by Congress—as the representatives of the People—not a single person, even the President..  That is why the Constitution gives that power to Congress, not the President.

The American people, not just Democrats, must arise and voice their disapproval, both on the streets and at the ballot box.