Judge Andrew P. Napolitano: War and the Constitution

Can the president wage any war that he chooses? Can Congress finance any war it wishes? Existed any constitutional or legal requirements before war can be waged? Are the United States allowed to legally attack an ally

These questions must be addressed in any debate about the U.S.’s involvement in Ukraine. There has been little debate. The media are mouthing what the CIA is telling them, and only a few websites and podcasts — my own, “Judging Freedom” on You Tube, among them — are challenging the government’s reckless, immoral, illegal and unconstitutional war.

The Constitution is the only source of power for the federal government. Congress has however managed to go beyond the Constitution’s boundaries domestically, spending money in areas it cannot regulate, and buying compliance from states using bribery.

These include the numerical minimum blood alcohol level to be eligible for DWI arrests and the maximum speed limits. In both cases, Congress offered money for states to pave highways if they lower these numbers. States that were cash poor accepted the money and all the strings. These are bribes, from which Congress has exempted himself from the criminal consequences.

This is also true for foreign policy. Russia cannot be declared war by Congress, as there is no military reason to do so. Russia does not pose a threat to American national safety or American persons and property. A treaty between the U.S. and Ukraine does not trigger an American military defence. However, Congress still spends money on war.

Only Congress can declare war against a nation or group under the Constitution. The last time Congress did this was to declare war on a country or group. However, Congress has granted limited authority to presidents and allowed them to fight undeclared conflicts. This can be seen in the disastrous and illegal invasions by President George W. Bush of Afghanistan and Iraq as well as the War Powers Resolution 1973.

Congress has not declared war against Russia, but it has also not authorized the US to use military force against it. However, it gave President Joe Biden a blank cheque for $100 billion. He was authorized to use it for military equipment for Ukraine as he sees fit.

He has pledged to give Ukraine everything it needs. “as long as it takes.” Whatever it takes to accomplish what? Because he doesn’t have a clear military goal, he cannot answer this question. The realistic military goals of eliminating Russian troops from Ukraine and Crimea, or removing Russian President Vladimir Putin from power are not achievable.

While Congress has authorized only weapons and cash to Ukraine, Biden has also sent troops. The U.S. involvement was the same: no war declaration, no authorization for military force but a steady increase in American troops as instructors and advisers. Finally, a congressionally supported war saw half a billion troops deployed. 10% of them returned to their home countries in body bags.

Because they are not wearing uniforms and their location is a secret, we don’t know how many American soldiers are currently in Ukraine. We know that they are involved with hostilities as much of the equipment that Biden has sent is dependent on American operating and maintaining skills. Some weaponry even allows American troops to strike at Russian forces by pulling the triggers.

Is it possible for American soldiers to kill Russian soldiers? Yes. Yes.

We now return to the Constitution. The War Powers Resolution, which requires presidential notification to Congress of the use of American military force, is unconstitutional because it consists of Congress giving away one of its core functions — declaring war. Supreme Court has declared that delegating core functions is a violation of the separation of power.

Biden has not yet informed Congress about his plans to use American troops forcefully. Yet, he has used the Navy and the CIA to attack Germany — a war crime and a violation of the NATO treaty — and he has soldiers out of uniform in Ukraine, so as to perpetuate the deception that boots are not on the ground.

You shouldn’t be surprised that Biden secretly gives War Powers Act notices to the Gang of Eight. What’s that? The Congress within the Congress is known as the Gang of Eight. It is composed of the Chairs and Ranking Members of the House Intelligence Committees, and the Republican/Democratic leaders of both the House of Representatives and Senate. The president legally shares secret information with them.

The Gang of Eight cannot take away war-making power from Congress, just as it cannot give them to the president. The Gang of Eight idea is antithetical democratic values. Secretly, the president must inform them about any violence he is planning. What kind of democracy kills in secret and operates as a democracy?

The U.S. is bound by various treaties that limit its warmaking to what is reasonable, proportional, and defensive. So, if a foreign power is about to strike — like on 9/11, while the government slept — the president can strike first in order to protect the U.S. The basis for war must not be based on imminent attacks. The enemy’s anti-U.S.military behavior must be serious, the goal of war must clearly be attainable and the means must be proportionate.

Are the U.S. being threatened by Russia? No. Which grave acts have the Russian military committed against America? None. Biden is pursuing a different goal. He won’t answer.

Does the Congress uphold Constitutional rights? Does the president? The answers are clear. We have given the Constitution to the people who will not listen. It will lead to death, bankruptcy, and the loss or personal liberty.

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