GREGG JARRETT: Democrat war powers vote was an unconstitutional way to halt Iran strikes
The Senate on March 4 wisely rejected a new war powers resolution aimed at halting or restricting President Donald Trump’s ability to carry out further military strikes against Iran. A House version also failed.
Introduced by Sen. Tim Kaine, D-Va., the resolution in the upper chamber called for ending hostilities "unless explicitly authorized by a declaration of war or a specific authorization for use of military force" issued by Congress.
The resolution, supported by nearly all Democrats, was defective for several reasons.
First, the president can engage in military action with or without a declaration of war. He does not need permission from Congress. Second, there already exists a valid authorization for use of military force that applies directly to the current conflict. Third, such a resolution unconstitutionally violates the separation of powers.
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The fallacy of the Democrats’ argument is easily demonstrated by revisiting their own words. It was not that long ago that former House Speaker Nancy Pelosi declared that President Barack Obama did not need authorization from Congress to bomb Libya in 2011. Democrats in unison mimicked her point of view.
They maintained their immutable stance as Obama conducted air strikes in six more countries — Afghanistan, Pakistan, Yemen, Somalia, Iraq and Syria. President Joe Biden followed suit with similar strikes, and nary a complaint from Democrats.
But when Trump does it, the partisan wolves are scratching at the White House door accusing him of acting lawlessly. Hypocrisy is always in vogue on Capitol Hill.
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Trump critics are wrong when they assert that the president is usurping the power of Congress to pursue military action. Quite the opposite. He is executing those powers granted directly to him by the people through the Constitution.
Democrats are the ones who are guilty of attempting to arrogate presidential power.
Constitutional powers
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Our Founding Framers deliberately chose to separate responsibility between the president and Congress in all matters of military action. This separation of powers is embedded in the Constitution that the Founders composed in the summer of 1787.
In Article II, Section 1, "executive power" was granted to the president. An essential element was discretionary authority over foreign affairs and military action to counter threats. This was affirmed by the Supreme Court in the famous Marbury v. Madison decision by Chief Justice John Marshall, who explained that the legislature has "no power to control that discretion."
Congress was not left out, but given a limited function. In the original draft, it was empowered "to make War." However, James Madison and others successfully argued that such language would give the legislature an outsized role in the conduct of war, which was purely an executive duty.
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Article I, Section 8 was therefore amended to give Congress only the power "to declare war." What does that mean? It is a formal proclamation to initiate a state of war, typically at the request of the president. It is narrowly construed and is by no means the exclusive power to commence military action. That rests with the president, although Congress can always refuse appropriations to pay for it.
The U.S. has issued declarations of war on 11 occasions across five conflicts. Yet, more than 200 times presidents have invoked their own constitutional authority to deploy and conduct aggressive military action against foreign foes to protect the national interest and secure the safety of Americans.
Article I does not grant Congress the power to prevent a president from doing so.
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War Powers Resolution of 1973
During the undeclared "war" in Vietnam, Congress passed a resolution that sought to constrain President Richard Nixon’s power to conduct military operations. It essentially rewrote the Constitution giving lawmakers the power they do not have while diluting the authority of the commander in chief.
It is well established that the legislature cannot, by a simple vote, take away an executive power vested in the president by Article II of the Constitution and simultaneously recast Article I authority. That would require altering the Constitution by amendment.
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For years, many prominent Democrats vigorously denounced the very resolution that their party passed in 1973 with majority control in both Houses. In 1988, Sen. George Mitchell, D-Me., soon to become majority leader, criticized it as flagrantly unconstitutional:
"[T]he War Powers Resolution does not work because it oversteps the constitutional bounds on Congress’ power to control the Armed Forces in situations short of war and because it potentially undermines our ability to effectively defend our national interests."
Mitchell, who was once a federal judge and knew a thing or two about the Constitution, was correct. However, since the Supreme Court has never directly ruled on the resolution, it remains an active but misbegotten law. No president since 1973 has accepted it as a valid constitutional constraint on their power.
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Some, including Obama, simply ignored it. All presidents in the last 53 years have reserved the right to act unilaterally while still following some of its dubious requirements. That is, notification to Congress within 48 hours and troop withdrawal within 60 to 90 days unless specifically authorized by Congress.
Thus far, President Donald Trump has fully complied.
If Congress chooses to demand cessation, Trump can disregard it knowing confidently that both precedence and the Constitution itself would fully justify it. In crafting that esteemed document, the Framers excluded the legislature from any definitive power to end hostilities or war.
Authorization for use of military Force
Immediately after the attacks on Sept. 11, 2001, Congress passed a joint resolution known as the "Authorization for Use of Military Force" (AUMF). It granted the president exclusive and extraordinary powers to target those groups and nations that "aided the terrorist attacks … or harbored" the perpetrators of 9/11. The stated goal was to "prevent any future acts of international terrorism against the United States."
One only needs to read the report of the 9/11 Commission to be reminded of Iran’s complicity. For years, the government in Tehran actively aided and abetted deadly attacks on America by offering al Qaeda terrorists extensive training, intelligence, transit, logistics, weaponry and funding. Some of the terrorists that Iran supported were the very same "future 9/11 hijackers," the report explained.
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When the U.S. invaded Afghanistan, several top al-Qaeda leaders fled to neighboring Iran where they were given safe haven.
As the world’s largest sponsor of terrorism, Iran has waged a blood-soaked war against the United States for 47 years. On their own and through their menacing proxies and militias, they have attacked our bases, targeted our citizens, kidnapped our diplomats and claimed the lives of more Americans than any terrorist regime on Earth.
The maniacal leadership has spent decades building a deadly arsenal of ballistic missiles and attempting to obtain nuclear weapons with the singular purpose of using them against the United States and our stalwart ally, Israel. The evidence of this is overwhelming.
For all these reasons, President Trump has ample constitutional authority — indeed, an affirmative duty — to take preemptive action to end the sinister threat once and for all.