By Harold Pease, Ph.D.
Although we applaud Secretary John Kerry's recent efforts in Paris to persuade 40 nations to contribute to a world plan to defeat the militant anti-Christian, convert-or-die, Islamic State of Iraq and Syria (ISIS), the president cannot do so in either country without violating the constitutional separation of powers.
We also agree with the administration that this is a fight within Islam and that they must take the lead in its demise, reining in their heinous Islamic partner. We are appalled, as is the world, with the beheading of British aid worker, David Haines, the third gruesome victim. That said, even though President Barack Obama believes himself within his authority, largely because weak Congresses have not punished him nor his Republican predecessors when they made war on other countries before, he has no constitutional authority to bomb Iraq, having once pulled out, or Syria.
Despite powerful humanitarian reasons justifying the action, we lack the treasure and ability to be the policeman of the world. Where does it end? Most of the world has dictators and tyrants as leaders.
The making and funding of war were clearly denied the Office of President in the U.S. Constitution because presidents "had the most propensity for war," as James Madison argued. Only Congress has the right "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." War requires the blood of our young warriors, and this requires the permission of the people who are required to be the fodder in such. Only the people's representatives can "provide and maintain a navy or make rules for the government and regulation of the land and naval forces" and for "calling forth the militia ... to repel invasions." Only the people's representatives can "provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States...." Congress is directly responsible for any acquisition of property for military use. All of this is in Article I, Section 8, and belongs to the legislative branch alone.
Funding for war is yet another constitutional concern and is clearly left with the House of Representatives. The Constitution says: "No appropriation of money to that use shall be for a longer term than two years."
Two years is the designated time that a member of the House is elected and authorized to represent his people. So, President Obama cannot expend monies for military activity to defeat ISIS in Iraq or Syria, or anywhere else, without congressional approval. Article I, Section 7, requires that "all bills for raising revenue shall originate in the House of Representatives...."
The only constitutional power a president is allowed to have in the Constitution is as "Commander in Chief of the army and navy of the United States ... when called into the actual service of the United States," which is done only by Congress, not by himself. No president has constitutional authority to engage in war without a declaration of war -- even if done by other presidents before him. To commit our young to potential death unilaterally is not within a president's power, and doing so should be an impeachable offense.
Constitutional clarity is so strong with respect to Congress alone having sole power of war that it is hard to imagine that neglecting this part of the Constitution is due to ignorance. This is one of the most critical moments in U.S. history with respect to liberty. If the executive branch of government can effectively remove the power to initiate war from Congress, giving it to itself, we are close to losing the rest of the Constitution as well.
To protect the Constitution and to keep the Congress from having but a ceremonial jurisdiction with respect to war, the House of Representatives two years ago attempted to place the president on short notice that the next disregard of Congress would be grounds for impeachment. Concurrent resolution H. Con. Res. 107, reads: "Whereas the cornerstone of the Republic is honoring Congress's exclusive power to declare war under Article I, Section 8, Clause 11, of the Constitution: Now, therefore, be it resolved by the House of Representatives (the Senate concurring), that it is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a president without prior and clear authorization of an Act of Congress violates Congress's exclusive power to declare war under Article 1, Section 8, Clause 11, of the Constitution and therefore constitutes an impeachable high crime and misdemeanor under Article II, Section 4, of the Constitution." We invite Democrats to support this resolution, which would restore, at least as far as war is concerned, the separation of powers.
Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for more than 25 years at Taft College. To read more of his articles, please visit www.LibertyUnderFire.org.
Editorial on 09/24/2014