Sen. Tom Cotton, Arkansas Republican, was quick to lecture Iranian officials on the constitutional power of Congress to override any executive agreement with President Obama to scale back or end economic sanctions in exchange for limits on Iran’s nuclear program. The U.S. Supreme Court has repeatedly held that Congress may supersede both treaties or executive agreements by subsequent legislation.
But why has Mr. Cotton declined to lecture visiting members of the Gulf Cooperation Council at Camp David with Mr. Obama that he lacks any constitutional authority to commit the United States to intervene militarily on their behalf if one or more is attacked by Iran or its proxies? The Constitution is apodictic on that point. Only Congress can authorize the offensive use of the military or the commencement of war.
Every member of the Constitutional Convention agreed. George Washington, the presiding officer, explained as president of the United States: “The Constitution vests the power of declaring war in Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure.” James Madison, father of the Constitution and Bill of Rights, wrote to Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, ” most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.” Alexander Hamilton, a vocal proponent of a muscular presidency, elaborated Federalist 69: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature” No participant in the making or ratification of the Constitution expressed a single syllable suggesting the president was empowered in any circumstance to initiate war on his own.
And initiating war is far more consequential for the nation than lifting economic sanctions. Post-9/11 wars in Afghanistan and Iraq have cost the United States more than $6 trillion (one-third of the national debt). Thousands of American service personnel have been killed and Iran has been strengthened as a regional hegemon. Further, the overthrow and execution of Iraq’s Saddam Hussein created a power vacuum and sectarian divide that has given birth to ISIS. In sum, if Congress has the definitive constitutional say on economic sanctions — which it does — a fortiorari, Congress has the definitive say on war and peace.
So has Sen. Cotton become afflicted with constitutional amnesia in failing to bring this constitutional cornerstone to the attention of the GCC? And why did his letter to the Iranian theocracy omit to elaborate that only Congress could authorize war if Iran acquired a nuclear capability or nuclear weapons?
The senator champions unconstitutional presidential wars against Iran and ISIS. His ulterior motive is to crush liberty. As Alexis de Tocqueville noted in Democracy in America: “All those who seek to destroy the liberties of a democratic nation ought to know that war is the surest and shortest means to accomplish it.”
Is Sen. Cotton hoping belatedly to become to the American Revolution what Napoleon was to the French Revolution? Let us hope we never witness an American version of Napoleon’s 18th of Brumaire.
For more information on Bruce Fein, visit Brucefeinlaw.