Is the U.S. Constitution Still Valid? To Prevent Unnecessary War with Russia, We Better Hope So – At a press conference in Brussels on Thursday, President Joe Biden was asked what the United States would do if Russia used prohibited weapons in Ukraine. “We would respond,” Biden replied. Russia’s use of chemical weapons would “trigger a response in kind.” What was not asked, however, is a far more important question: what would the United States Congress do, as no American president has the constitutional authority to take actions that could plunge America into full-scale war – especially a war that could result in American cities being destroyed in a nuclear exchange.
The question, by all rights, shouldn’t even be asked of the president. It should be directed to Congressional leaders. The U.S. Constitution is explicit and unequivocal that the power to declare war lies exclusively with Congress.
It is both telling and troubling that Biden’s response generated no follow-up questions by the press nor expressions of outrage or overreach in the mainstream media following Biden’s statements. Because U.S. presidents have so frequently ignored the Constitution’s requirements and taken military action on their own authority, the presidential ability to send the military on any mission he sees fit has become routine policy. Congressional members typically support the president from their party on the use of force abroad, prioritizing party solidarity over the power of their branch of government. But U.S. law and the Constitution are unequivocal that such usurpation of authority is wrong.
Article 1, section 8, clause 11 of the Constitution expressly and simply says that Congress alone has the power “to declare war.” The 1973 War Powers Act provides further guidance by first reiterating that Congress alone has war-making power, but then adds clarification on what the president, as Commander-in-Chief, can and can’t do.
The president, on his own authority, the law states, can only send troops “into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” when “(1) a declaration of war,” has been duly made by Congress, “(2) specific statutory authorization (has been granted by Congress, such as an authorization for the use of military force), or “(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” These provisions and restrictions provide a critical twin service for the defense of the nation.
First and foremost, one of the prime reasons the Framers designated the war-making power to Congress was to avoid the propensity so common in the world at the time whereby a sovereign individual could unilaterally take an entire nation to war, whether its citizenry felt it was necessary or not.
By requiring the consent of a diverse and deliberative body before engaging in war, the Framers recognized that the nation would not be sent into war unless the need was real, compelling, and urgent – and that a majority of the country’s people agreed that war was necessary. Frivolous war, or war that only benefitted a small elite, would not be supported by the majority of the people who would be responsible for killing and dying in its prosecution.
Conversely, especially with the clarification of the 1973 War Powers Act, the nation would not be put at risk in the event of an actual or looming attack; the Commander-in-Chief could act in an emergency to preserve our security. But even this is strictly limited: the president can’t take the country to war because of an attack on another country, even a treaty ally. That would still require Congressional action first. And that brings us back to the situation in Europe.
If it is conclusively proven that Russia uses chemical weapons at any point in the Russo-Ukraine War, President Biden will not be authorized, as Commander-in-Chief, to unilaterally (or even in concert with NATO allies) order any military strike, “in kind” or otherwise. The consequences of even the smallest military action on a Russian military asset, soldier, or facility on Russian soil could spark a full-scale war between our two nations. That power to act in such situations is exclusively reserved for Congress.
I would argue strenuously that Congress’s primary responsibility is the preservation of American security and even in the event of a chemical strike on Ukrainian territory, we should not escalate in the military realm (there are other, painful actions short of lethal action which could be applied). But under no circumstances would Biden be authorized to take action against Russia on his own authority.
The war between Russia and Ukraine is already causing the most significant humanitarian disaster in Europe in 70 years. Because of the tensions between nuclear-armed Russia and nuclear-armed NATO, the risk of any escalation beyond the borders of Ukraine could have catastrophic consequences for all of mankind, not just the United States. Because the stakes are so high, the U.S. Congress must insist – now, before any weapons of mass destruction are used in Ukraine, by any party – that it will demand its sole right to decide whether the United States goes to war against a nuclear superpower. Our survival as a people may depend on it.
Daniel L. Davis is a Senior Fellow for Defense Priorities and a former Lt. Col. in the U.S. Army who deployed into combat zones four times. He is the author of “The Eleventh Hour in 2020 America.” Follow him @DanielLDavis1