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By JUDGE ANDREW P. NAPOLITANO

Last weekend, President Joseph R. Biden Jr. ordered the US military to bomb targets in Syria and Iraq in an effort “Send a clear and unambiguous dissuasive message” to Iran. It is apparently the belief of the Biden administration – as it was with Biden’s three immediate presidential predecessors – that the United States has the moral and legal authority to destroy any target outside of the United States that has financial, political or military ties with Iran.

Morally, the United States can only use force defensively or to repel an impending attack. When asked for the legal authority of an offensive attack, a Pentagon spokesperson said it can be found in Section 2 of the U.S. Constitution. Yet it is not.

Governments love war. Political philosopher Randolph Bourne, who made a lifelong study of the effects of war, once derisively called it “the health of the state” because it tends to unify the people behind the military might of the war-makers and it makes it easier to raise taxes to support the troops. It keeps government officials busy and its clients well paid. Hence the almost irresistible impulse modern American presidents have had in using the military to assert imperial political will around the world.

Can the president single-handedly send deadly missiles at any target he chooses? In a nutshell: No.

Here is the backstory.

The central element of the American Constitution is the separation of powers. Congress drafts the laws. The president enforces the laws. The judiciary determines what laws and the Constitution mean in given factual contexts. Although the three branches are equal, each has primacy over the other two in its fundamental constitutional responsibilities, and each is required to defer to the other two in their core areas.

Among the separate powers are also the powers of war. These were hotly debated during the Constitutional Convention of 1787. Federalists – people of big government and central planning – wanted the president to be able to command troops to fight at his discretion. The anti-federalists – the small, freedom-loving governments – did not want a standing army because they feared that it would be used as an instrument to kill on presidential whim and as a drain on the treasury.

Thomas Jefferson, who wrote the Declaration of Independence, which is largely an indictment of the imperial abuses of the British military by King George III, proposed that if a president could both wage war – unilaterally decide who to fight against – and wage war like the commander-in-chief, he would be a king, not a president.

The compromise was a two-year military budget and the separation of war powers. The two-year budget was intended to ensure that no standing army could stay longer than two years, after which the troops would return home or be re-authorized. Although there was no standing army during the lifetime of one of the framers of the Constitution, their intention died with the war between states. The other part of the compromise worked out by the drafters was to separate the warrior powers from the warrior powers. Thus, Article 1 of the Constitution provides that only Congress can wage war, and Article 2 provides that only the President can wage it. Congress cannot command troops, and the President cannot send them or send their deadly instruments to attack without a declaration of war from Congress.

Yet, throughout history, congresses have looked the other way when presidents have called on the military to attack targets that were either civilian or located in a country against which there had been no declaration of war by Congress.

President Harry Truman targeted thousands of Japanese civilians as World War II was about to end. President Lyndon B. Johnson has killed tens of thousands of Vietnamese civilians. President George W. Bush has killed thousands of Afghan civilians. President Barack Obama has killed thousands of people in Libya and President Donald Trump used the military to kill an Iranian general as he went to lunch in Iraq when the United States was at war with neither country. Trump also bombed Yemen in favor of the Saudi government.

In all of these unconstitutional offensive attacks, Congress has looked the other way.

Can the President effectively usurp the war powers of Congress knowing that he will always look the other way? The Supreme Court has never ruled directly on this. Yet every time the court has ruled whether Congress can cede one of its powers to other branches, the court has ruled against it.

The separation of powers was not established for convenience, nor is it voluntary. In other words, the separation of powers is at the heart of US government because it acts as a bulwark against the accumulation of too much power in one branch of government and therefore acts as a brake on incursions against the personal freedom of the branch. dominant.

When members of Congress look away as Presidents decide who to wage war against, they weaken the Constitution they have sworn to uphold.

In 1973, Congress passed the War Powers Resolution against President Richard Nixon’s veto. This law – never ruled by the Supreme Court – allows the president to choose a target and deploy troops for two 90-day periods on notice to Congress, in direct defiance of the Constitution. Biden, who as a senator was skeptical of the law, did not invoke it when he attacked Syria and Iraq last week because he knows the law rests on fragile constitutional foundations, just as fragile than its general assertion of Article 2.

Article 2 limits the presidential military role to commanding troops in wars declared by Congress. When read in conjunction with Article 1, it is clear that where there has been no declaration of war, there can be no recourse to the army. But that does require our public servants to be loyal to the Constitution – a presumption that we unfortunately know we cannot trust.

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