The Constitution’s Declare War Clause is supreme over the War Powers Resolution. The latter ambiguously suggests the President can initiate and fight a war for 60 days unless Congress by statute calls a halt. To the extent the WPR purports to authorize 60-day presidential wars, to that extent it is unconstitutional. The Declare War Clause is dispositive—only Congress can authorize the offensive use of the military. The President may respond to sudden attacks on the United States that have already broken the peace. Biden was not reacting to an attack on the United States in bombing Yemen. He was defending naval traffic in the Red Sea for which he needed a declaration of war against Yemen or the Houthis to conduct his bombing raids. What Biden has done is indistinguishable from what the UK, France, and Israel did in 1956 in attacking Egypt over nationalizing the Suez Canal. President Eisenhower rejected the use of force, and the UK, France, and Israel backed down tacitly acknowledging their illegal acts of aggression against Egypt. Biden can be hoisted on his own petard. This is what he said about President George W. Bush and attacking Iran without a congressional declaration of war in 2007 on Hard Ball with Chris Matthews: MATTHEWS: I keep waiting for that second part of that intelligence analysis to show how it was manipulated. But I want to ask you about something you've been involved with. You said that if the president of the United States had launched an attack on Iran without congressional approval, that would have been an impeachable offense. BIDEN: Absolutely. MATTHEWS: Do you want to review that comment you made? Well, how do you stand on that now? BIDEN: Yes, I do. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. You've known me for a long time. I was chairman of the Judiciary Committee for 17 years, or its ranking member. I teach separation of powers and constitutional law. This is something I know. So I got together and brought a group of constitutional scholars together to write a piece that I'm going to deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people, unless we're attacked or unless there is proof that we are about to be attacked. And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him. Biden should be impeached and removed from office by his own yardstick. He has also declared he would conduct war against China if it attacked Taiwan and against Russia if it attacked a NATO member without a congressional declaration of war. If Biden can airbrush out of the Constitution, the Declare War Clause with impunity, no constitutional right is safe from his wrecking ball. The Rome Statute of the International Criminal Court defines the crime of aggression, which easily covers Biden’s attack on Yemen, as follows: Article 8 bis3 Crime of aggression 1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State. |