A Choice Between Honor and Ignominy

There was a time when Mr. Biden bugled opposition to unilateral presidential wars. He denounced them as impeachable "high crimes and misdemeanors" subversive of the constitutional order. So what will he do now about our involvement in Libya?
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Vice President Joe Biden is an honorable man.

It is not that he loves the Constitution less, but that he adores political power more, which explains his tacit endorsement of President Barack Obama's usurpation of the exclusive congressional power to commence war. In Reid v. Covert, the Supreme Court declared that treaties and laws enacted pursuant to them must comply with the provisions of the Constitution.

Last March 19, President Obama initiated war against Libya without congressional authorization as mandated by Article I, section 8, clause 11 of the Constitution ("the War Clause"). Moreover, the president proclaimed that the White House is empowered to unilaterally commence war not only to play Good Samaritan to the Milky Way, but also to advance "regional stability" or the "credibility" of the United Nations Security Council. That unprecedented principle would justify endless presidential wars anywhere, including South Ossetia, Chechnya, Tibet, Zimbabwe, North Korea, Iran, Syria, Saudi Arabia, Kashmir, the South China Sea, etc. Unless repudiated by the political leadership of the United States, the principle will lie around like a loaded weapon ready for invocation by some future self-deified Caligula to justify martial law.

There was a time when Mr. Biden bugled opposition to unilateral presidential wars. He denounced them as impeachable "high crimes and misdemeanors" subversive of the constitutional order. In November 2007, on the campaign trail, the then Chairman of the Senate Foreign Relations Committee threatened President George W. Bush with impeachment and removal from office if the Commander in Chief initiated war against Iran without prior congressional authorization. With uncharacteristic clarity for customarily fork-tongued politicians, Mr. Biden sermonized:

But let me tell you, I have written an extensive legal memorandum with the help of a group of legal scholars who are sort of a stable of people, the best-known constitutional scholars in America, because for 17 years I was chairman of the Judiciary Committee. I asked them to put together [for] me a draft, which I'm now literally riding between towns editing, that I want to make clear and submit to the United States Senate pointing out the president has no authority to unilaterally attack Iran. And I want to make it clear, I want it on the record, and I want to make it clear, if he does, as chairman of the foreign relations committee and former chair of the judiciary committee, I will move to impeach him.

And then came the elections of 2008. As Mr. Obama's running mate, Mr. Biden was elected vice president. His devotion to the Constitution shriveled in accord with Lord Acton's dictum, "Power tends to corrupt, and absolute power corrupts absolutely." He became enamored of Congressman Timothy John Campbell's retort to President Grover Cleveland's opposition to an unconstitutional bill: "What's the Constitution between friends?"

The Founding Fathers would be appalled and alarmed at such contempt for their handiwork. The Constitution's crown jewel was the assignment of the war power to Congress. All of human history demonstrated the propensity of the executive to inflate danger or otherwise concoct justifications for war to aggrandize power or to settle personal vendettas. James Madison, father of the Constitution observed: "Of all the enemies of public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other.... War is the true nurse of executive aggrandizement."

The Founding Fathers knew that liberty was incompatible with constant war. Madison elaborated that "no nation could preserve its freedom in the midst of continual warfare." The Constitution's makers thus endowed Congress with exclusive authority to take the nation from a state of peace to a state of war (which legalizes murder). The legislative branch gains nothing from military conflict, and would be disinclined towards adventurism.

The original intent and meaning of the War Clause is manifest.

During the Constitutional Convention of 1787, James Madison explained that the power "To declare war" had been vested in the Congress in lieu of the power "To make war" to leave to the Executive "the power to repel sudden attacks."

Delegate Elbridge Gerry "never expected to hear in a republic a motion to empower the Executive alone to declare war," but still moved with Madison "to insert declare -- in place of make" in Article I, Section VIII, Clause XI.

Delegate George Mason was against "giving the power of war to the Executive, because not safely to be trusted with it; or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war; but for facilitating peace." Yet Mason also "preferred declare to make."

James Wilson, a future Justice of the U.S. Supreme Court elaborated at Pennsylvania's Ratification Convention:

This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must he made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.

Supreme Court Justice Robert Jackson warned against the principle of presidential wars in Youngstown Sheet & Tube v. Sawyer:

Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.

President Harry Truman unconstitutionally commenced war against North Korea without congressional authorization. President William Jefferson Clinton similarly flouted the Constitution by unilaterally initiating wars over Bosnia and Kosovo when Congress balked. But those precedents do not exonerate President Obama's usurpation. The United States Supreme Court invalidated 50 years of unconstitutional encroachments on presidential authority in INS v. Chada. Lawlessness does not become lawful by repetition.

Vice President Biden confronts an epic choice. He may resign to protest President Obama's War Clause usurpation as Attorney General Elliot Richardson resigned over President Nixon's obstruction of the Watergate investigation. That choice would immortalize Mr. Biden. Or the vice president may acquiesce in the president's vandalizing of the Constitution like Attorney General Francis Biddle's silent acceptance of racist concentration camps for Japanese Americans in World War II. That choice would bring ignominy.

Mr. Biden, friends of the Constitution, the Republic, and the rule of law are watching.

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