Rocky Anderson: Biden’s claim of the power to initiate war is unconstitutional

The Founders knew that it was wrong to give the executive the power to launch a war, and gave that power to Congress.

President Joe Biden was recently asked, “Are you willing to get involved militarily to defend Taiwan if it comes to that?”

That made as much sense as asking the president whether he would affirm Roe v. Wade. It ignored the separation of power between the three branches of government, wrongly assuming one person, the President — currently an impaired and historically gaffe-prone Biden, or perhaps, at another time, an impulsive and ignorant fool like Trump — is empowered to decide whether our nation will engage in war, possibly leading to nuclear annihilation.

Biden answered that question, “Yes. That’s the commitment we made.”

Suddenly, the president, without any authorization by Congress, announced the U.S. would go to war — a mass-killing-and-destruction competition — against China if it invaded Taiwan. Yet, as the Supreme Court has made clear, in the 1801 case Talbot v. Seeman, “the whole powers of war..., by the Constitution of the United States, [are] vested in Congress.”

This was not just a one-off. Then-Senator Biden voted to delegate to President George W. Bush Congress’s sole, non-delegable constitutional authority to decide whether the U.S. should make war against Iraq — all on a pack of lies, which would have been exposed had Congress done its job.

Recently Biden falsely claimed that NATO membership commits member nations to militarily intervene if a member is attacked. According to Biden, “the United States will defend every inch of NATO territory with the full force of American power.”

The NATO treaty provides that it “shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” The constitutional processes in the U.S. are clear. Contrary to Biden’s erroneous view, Secretary of State Dean Acheson, testifying in support of NATO in 1949, stated: “[Article 5] does not mean that the United States would automatically be at war if one of the other signatory nations were the victim of an armed attack. Under our Constitution, the Congress alone has the power to declare war.”

The framers of the Constitution feared that giving the president war-making powers would make the president essentially an elected monarch inclined to increase his power by initiating war. The initial draft of the War Power Clause said that “Congress shall have the power to make war,” but “declare” was substituted for “make” so the president would have the flexibility to defend the country in the case of a sudden or imminent invasion.

James Madison wrote: “The Constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.”

Madison reiterated the point: “The power to declare war, including the power of judging the causes of war is fully and exclusively vested in the legislature ... the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

Thomas Jefferson wrote: “We have already given in example one effectual check to the dog of war by transferring the power of letting him loose from the Executive to the Legislative body.”

Alexander Hamilton explained the War Power Clause: “‘The Congress shall have the power to declare war’; the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war.”

Since World War II, Congress has abrogated its exclusive constitutional duty to decide whether war should be commenced. The courts, fabricating a “political question” doctrine, have irresponsibly dodged their responsibility to rule on challenges to the constitutionality of presidentially initiated wars.

Those betrayals to our constitutional republic have led to a devastating history of unjustifiable wars costing millions of lives and untold misery, initiated by reckless, dishonest presidents, including the Mexican American War, the Vietnam War and the Iraq War. Those wars likely would have been avoided had Congress, after holding hearings and debates, made the determination about whether to engage in war, as is its exclusive constitutional prerogative and responsibility.

Ross C. “Rocky” Anderson, Salt Lake City, is executive director of the Justice Party, a constitutional and civil rights lawyer. He was the mayor of Salt Lake City from 2000 to 2008 and the 2012 Justice Party presidential nominee.