- - Friday, September 12, 2014

Secretary of State John Kerry says we’re not at war with ISIS or other Islamic jihadists and terrorists.

But if it’s not a war, what is it? And who has the constitutional duty to define how we will punish terrorists and other non-state actors?

It’s Congress, not the President, which has explicit authority under a neglected but clear clause of our Constitution.

Rather than let President Obama continue to flounder in foreign policy that is over his head, the Constitution gives Congress the job to provide a strategy. Congress must do this even though Mr. Obama blithely disregards laws (as he does on immigration). And they must hold the president accountable to comply.

That authority originates in routinely overlooked but clear language in the Constitution. Immediately before granting Congress the power to declare war, Article 1, Section 8, gives Congress the duty “to define and punish … offenses against the law of nations.” Yet this all-important provision routinely is ignored by Congress, by presidents and by our media.

Piracy and other acts on the high seas are mentioned in the Constitution as examples of this authority, but Congress has full leeway to address global terrorism and all international offenses and to direct our responses. What is an offense against nations? Congress defines what we consider those to be.

An example is the legislation that directed our response to the World Trade Center and Pentagon attacks of September 11, 2001. Congress is not limited either to declare war or not. This power enables Congress to create in-between remedies by enacting laws on our response to international issues, including global terrorism.

Simply because formal declarations of war have become archaic — and there have been none since World War II — does not mean all military decisions default to the president as commander-in-chief. He is to execute strategy in compliance with our laws, not make those laws and military policies by himself. Article I, Section 8, also enumerates six powers of Congress pertaining to national defense. These include making the rules that govern the armed forces, as well as raising and supporting armies and a navy, and organizing, arming and disciplining state-level militia.

Mr. Obama improperly claims “clear authority” to act totally on his own in Syria, Iraq, or anyplace else. But that defies what the Constitution says. If Congress passively accedes to Obama — rather than accepting the political risk to define how we will punish groups such as ISIS — then they also are defying what the Constitution says. That is passing the buck.

Ignoring the existence of this language in Article 1, Section 8, “to define and punish” international offenses does not make that language go away. Politicians, pundits, the media and others may ignore the text, but it’s there: Defining and punishing offenses against the law of nations is the duty of Congress. There is no grant of power to the president to be sole judge of how we punish global offenses. Presidents must be guided by Congress and must heed that guidance. He might veto legislation, but that would not expand his power or let him decide things on his own.

Making tough decisions like this is counter to the political skittishness of many senators and congressmen. It requires political courage to reverse the dangerous trends of Congress’ abdicating its authority and of giving too much power to the Executive Branch. The Constitution’s standard is tough but it is healthy for America.

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