The president, following a practice of his predecessors, has appropriated and further delegated the war-making power — which belongs to Congress alone. This has created a constitutionally impermissible condition where the power to declare war has passed into the hands of those responsible to wage war.
There is no faster route to destruction of our republic than the path we are currently upon, where unelected Pentagon officials have been ceded a constitutional power reserved for the Congress.
This is precisely the condition President Dwight D. Eisenhower warned of in his valediction to beware of the military-industrial complex.
Unless Congress soon reclaims and restrains this power, our country will face a precipitating incident that could cause us to stumble into World War III with Russia, North Korea, China, Iran or a combination of the four.
The president’s assignment to Defense Secretary James Mattis and his generals the conduct of an undeclared war in Syria, with sea-based missile attacks and the recent shooting down of a Syrian government plane inside Syria; the restarting and escalation of the Iraq war that officially ended on Dec. 18, 2011; expressly permitting the Pentagon discretion to drop an extraordinary munition on Afghanistan; the restarting and escalation of the war in Afghanistan, which officially ended on Dec. 28, 2014; and the violation of international treaties governing respect for sovereignty, nonaggression and safeguarding of civilian populations are occurring without constitutionally required congressional permission.
What is common to all these actions is that none of them constitutes a situation in which our native land is under imminent threat, requiring the president to respond immediately in the defense of our national security.
A liberal interpretation of the Authorization for Use of Military Force passed by Congress in 2001, in response to the terrorist attacks on 9/11, has morphed into the global war on terror, resulting in a permanent, unconstitutional seizure of the war-making power that the founders expressly conferred upon the legislative branch, since its direct election would ensure a measure of accountability to the American people.
In a 1928 Supreme Court case, J.W. Hampton Jr. & Co. v. United States, Chief Justice William Howard Taft wrote: “It is a breach of national fundamental law if Congress gives up its legislative power and transfers it to the President.” Nearly 90 years later, that is exactly what has happened with respect to the power to make war.
As a member of Congress, I have been involved in three federal court cases that challenged the constitutionality of presidential decisions on national security: Campbell v. Clinton, Kucinich v. Bush and Kucinich v. Obama, two dealing directly with war powers.
In Campbell v. Clinton (1999), I was the lead Democratic plaintiff as 31 members of Congress sued to end the war against Yugoslavia. The federal district court demurred ruling on the war-making power, rejecting the lawsuit on the basis of standing and the absence of a clear impasse between executive and legislative bodies, since members of Congress were voting to fund the war. A ruling on the issue of nondelegability was avoided.
In Kucinich v. Bush (2002), 32 members of Congress sued the president for abuse of executive authority by withdrawing from the 1972 Anti-Ballistic Missile Treaty without congressional consent. The district court dismissed the case as nonjusticiable, terming it a “political question.”
In Kucinich v. Obama (2011), myself and Rep. Ron Paul (R-Texas) led 10 members of Congress to try to stop the administration’s war against Libya. As with the case regarding Yugoslavia, our case was rejected on the basis of standing.
The courts are loath to intervene in such cases. Undeclared wars grind on. New acts of war, by land, air and sea, have taken their place. Some members decry such wars yet vote to fund them and thereby provide both the president and themselves a backdoor waiver. And the public wonders why America’s sons and daughters are continually placed at risk without clear congressional assent as required by the Constitution.
Exactly how many U.S. troops are in Iraq and Syria? We don’t know because the Pentagon won’t say. Mattis may send 4,000 more troops to Afghanistan. On whose authority?
Members of Congress take an oath to defend the Constitution. They must know the dangerous path of permanent, undeclared war upon which our country is now set, the perils for those who serve, the sacrifice of our domestic agenda, the inevitable blowback from innocents abroad killed in our name, and the disintegration of the rule of international law with its dire consequences. Congress must reclaim its constitutional power.
Kucinich served eight terms in the U.S. House from 1997 to 2013. He is a columnist for The Hill and also a contributor to Fox News.
The views expressed by this author are their own and are not the views of The Hill.