Thursday, February 21, 2019
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The Supreme Court’s Abrogation of Responsibility on Declaring War

US Congress

Everyone agrees that under our system of government, the Constitution requires the president to secure a declaration of war from Congress before he can legally wage war. Everyone also agrees that presidents have violated this constitutional restriction on power several times, especially since World War II.

We now are being treated to the latest manifestation of this phenomenon. President Obama’s military forces have already dropped bombs on the Islamic state in Iraq, and the president has announced that he intends to do the same in Syria.

Violating the air space of a sovereign and independent country is an act of war. Nonetheless, Obama says that if the Syrian government enforces its airspace by firing on U.S. war planes, he’ll order his forces to drop bombs on the Syrian government.

As commentators are pointing out, Congress is doing the same thing it has always done when the president wages war without the constitutionally required congressional declaration of war. It is doing nothing. With mid-term elections in November, the members of Congress are too scared of taking the wrong side of the issue and so they are just letting Obama wage this latest war in violation of the Constitution.

But what about the federal judiciary? Isn’t it the solemn responsibility of the judicial branch of government to enforce the Constitution? Doesn’t it do so in other contexts? Why not here?

Of course, the federal courts are unable to enforce the Constitution on their own initiative. They need a lawsuit to do so.

But have you noticed that while people file lawsuits to enforce the Constitution in other areas — such as Obamacare — no one files lawsuits to stop the president from violating the Constitution by waging war without the constitutionally required congressional declaration of war.

There is a simple reason for that: long ago the Supreme Court made it clear that it would not fulfill its constitutional duty to enforce the Constitution in this area.

Rather than simply announcing that it was abrogating its solemn responsibility under the Constitution, the Court came up with all sorts of nonsensical rationalizations as to why the federal judiciary was precluded from enforcing this particular provision of the Constitution, such as “lack of standing,” or “a non-justiciable controversy” or “a political issue.”

Of course, none of those excuses for judicial abrogation are found in the Constitution. The Supreme Court just made them up as a way to avoid having to enforce the declaration of war requirement against the president.

Why would the Court do that? Why make an exception here? After all, the Constitution is clear: no congressional declaration of war means no waging of war by the president.

My hunch is that it’s because the Court knows that the president, the Pentagon, and the CIA wouldn’t comply with a judicial order stopping them from waging the war. Therefore, to avoid a “constitutional crisis,” which would involve a battle that the Court would clearly lose, the Court simply comes up with excuses as to why it is precluded from enforcing this critically important part of the Constitution.

Let’s say that the Court enters an injunction against the president, Pentagon, and CIA, ordering them to stop bombing Iraq and Syria. What are the chances that the president and his military and paramilitary forces are going to comply with the order?

The chances are nil, and the Supreme Court knows it.

Then what? How does the Court enforce its injunction? By sending a team of U.S. Marshalls against the CIA and U.S. military bases? It’s not difficult to know who’s going to win that dispute. My bet is that those U.S. Marshalls wouldn’t even be permitted to get past the front gate of CIA headquarters or any military base.

The Constitution is the law of the land. It is the law that we the people have imposed on federal officials. They expect American citizens to obey their laws. They should obey our law, the law of the Constitution. When the president disobeys the law, the Supreme Court could should enjoin him from doing so. If he violates the law or a judicial order enjoining him from breaking the law, Congress should impeach him. If the legislative and judicial branches aren’t going to enforce the Constitution, then who is?

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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