The United States Supreme Court should recognize the standing of citizens to challenge the constitutionality of presidential wars. It is our last best hope to regain the republic. Over the past century, we have become dictatress of the world through a toxic combination of presidential usurpations and congressional derelictions. Our glory is no longer liberty, but domination and force.
In addressing war, the U.S. Constitution’s makers painted in prime colors, not pastels or chiaroscuro. Every participant in the drafting, debating, and ratifying of the document understood that under Article I, section 8, clause 11, only Congress was empowered to cross the Rubicon from a state of peace to war. The sole exception was presidential power to “repel sudden attacks.” Presidential wars were anathema for reasons James Madison, father of the Constitution, related to Thomas Jefferson, author of the Declaration of Independence:
“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.”
Even Alexander Hamilton, the most ardent proponent of a muscular presidency, in Federalist 69 applauded the Constitution’s exclusive entrustment of the war power to Congress.
Despite the constitutional clarity, Congress has yielded or surrendered its war power to the president. It began with the Korean War in 1950. The surrender has not divided the major parties. Both Democrats and Republicans in the House and Senate recoil from the responsibility for deciding on war or peace in the manner of a dog retreating to its kennel when danger appears. The Members are highly risk-averse professional politicians. They calculate that the safest political posture is to pass the buck to the president, but carp at the commander in chief if the war goes south—irresponsibility more to be marveled at than imitated.
At present, presidential wars are ongoing in seven countries: Somalia, Yemen, Libya, Syria, Iraq, Afghanistan, and Pakistan. There are additional presidential wars against the Islamic State of Iraq and Syria (ISIS) and al-Qaeda everywhere on the planet.
Congressman Walter Jones, North Carolina Republican, on behalf of himself and as many as three dozen other House members, has written at least five letters to the House speaker asking for debate and votes on these presidential wars. Each and every letter has been completely ignored. Congressional leadership does not want a vote. Neither does the majority of the rank and file.
In 2013, Congress balked at President Barack Obama’s request for a vote to commence war against Syria over suspected use of chemical weapons. But in September 2014, President Obama unilaterally began bombing Syria ostensibly to degrade and destroy ISIS in a war with no discernible endpoint. Congress did nothing about the usurpation.
In 1999, Congress voted down a declaration of war and an authorization for the use of military force in Kosovo. President William Jefferson Clinton, nevertheless, conducted a 79-day bombing and cruise missile campaign. Congress did nothing to defend its war prerogative.
The eagerness of Congress to surrender its war power to the president does not cure the flagrant violation of the Constitution’s separation of powers. It constitutes a structural Bill of Rights to protect the American people from tyranny as the Supreme Court explained in Boumediene v. Bush (2008). Justice Robert Jackson, chief Nuremburg prosecutor, also elaborated in Youngstown Sheet & Tube v. Sawyer (1952) that, “[T]he Constitution diffuses power the better to secure liberty.”
Since Congress is in pari delicto with the president, however, the best strategy for enforcing the Constitution’s prohibition of presidential wars is citizen suits against the President in federal courts. According to the Declaration of Independence, citizens have both a right and duty to throw off despotic governments. A citizen’s right to challenge the tyranny of presidential wars in federal court would seem a lesser included right.
The life of the law, however, has been power rather than justice. Legal theories bend to accommodate the establishment—the power elite. Federal courts have generally denied citizens standing to challenge the constitutionality of presidential wars to avoid upsetting the multi-trillion dollar military-industrial-counterterrorism complex. Chief Justice Charles Evans Hughes lectured that, “The power to wage war is the power to wage war successfully.” It matters not that the war is more ill-conceived than Athens’ attack on Syracuse in 415 B.C.
But these precedents against citizen standing are unconvincing.
The Supreme Court declared in Flast v. Cohen (1968) that the gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.
Citizen-Plaintiffs clearly have deep personal stakes in escaping the calamities of presidential wars not in self-defense.
War impoverishes and oppresses the citizenry. Abraham Lincoln elaborated: “The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”
The presidential wars in Iraq and Afghanistan alone have squandered a staggering $6 trillion in exchange for more upheaval and international terrorism—the worst investment ever made in the history of mankind. The lives of Americans would have been much improved if that sum had been dedicated to building or upgrading schools, roads, bridges, airports, water treatment facilities, or other infrastructure.
War aggrandizes executive power and crushes individual liberty. A nation is free to the extent the executive is removed from the war power. James Madison explained:
“In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
Hence it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
Alexander Hamilton added in Federalist 8:
“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”
And Alexis de Tocqueville echoed 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 the shortest means to accomplish it.”
Thus, presidential wars against which Madison warned have crippled liberty. The President plays prosecutor, judge, jury, and executioner to kill any person on the planet the Commander in Chief decrees is an imminent danger to national security based on secret, unsubstantiated evidence. On his say-so alone, the President spies on the entire population to gather foreign intelligence. Military commissions supersede Article III civilian courts in the prosecution crimes that are not international war crimes. Persons are detained indefinitely without accusation or trial. Secrecy displaces transparency in the conduct of public affairs. The President invokes state secrets to frustrate judicial redress for the government’s constitutional wrongdoing, including assassinations, torture, and kidnappings.
Cicero was right. “In time of war, the law falls silent.” Perpetual presidential wars signal the end of the rule of law and the reduction of citizens to serfs.
War further endangers citizens by risking lethal blowback. The 9/11 international terrorist murders can be traced to President George H.W. Bush’s war in 1991 war to expel Iraq from Kuwait. The President’s ulterior motive was to protect Saudi Arabia and its oil from the clutches of Iraq’s Saddam Hussein. Thus, our troops remained in Saudi Arabia after Saddam had surrendered.
Osama bin Laden’s two fatwas before 9/11—in 1996 and 1998—threatened the United States with jihad because we were occupying Mecca and Medina in Saudi Arabia, the two holiest places of Islam, and we were strangling Iraq. The fatwas said nothing about hating the freedoms American citizens enjoy.
The Orlando Pulse nightclub murderer suggested at several points in communications with the police that his motivation was to stop the United States from killing Muslim women and children in Syria and Iraq.
The most convincing evidence of blowback fueled by our multiple presidential wars in the Middle East and South Asia derives from exchanges between United States District Judge Cederbaum and convicted Times Square bomber Faisal Shahzad, a Pakistani-American:
Judge Cedarbaum asked whether Mr. Shahzad intended the bombs to explode. Oh yes, Shahzad told her. He explained that he chose Times Square on a Saturday night so he could maximize the mayhem: “Yes. Damage to the building and to injure or kill people. But again, I would point out one thing in connection to the attack, that one has to understand where I’m coming from, because this is… I consider myself a mujahid, a Muslim soldier. The US and the NATO forces, along with 40, 50 countries, has attacked the Muslim lands. We…”
Cedarbaum: “But not the people who were walking in Times Square that night. Did you look around to see who ‘they’ were?”
Shahzad: “Well, the people select the government. We consider them all the same. The drones, when they hit…”
Cederbaum: “Including the children?”
Shahzad: “Well, the drone hits in Afghanistan and Iraq, they don’t see children, they don’t see anybody. They kill women, children, they kill everybody. It’s a war, and in war, they kill people. They’re killing all Muslims.”
Cederbaum: “Now we’re not talking about them; we’re talking about you.”
Shahzad: “Well, I am part of that. I am part of the answer to the US terrorizing the Muslim nations. I’m avenging the attacks because the Americans only care about their people, but they don’t care about the people elsewhere in the world when they die.
Recognizing citizen standing to challenge presidential wars and entering a declaratory judgment against particular wars would end the Supreme Court’s role in holding the President accountable for the constitutional usurpations. If voluntary compliance with the Court’s decree was not forthcoming, the responsibility would lie with Congress to impeach and convict the President of the high crime and misdemeanor of defying the ruling, and remove the President from office.
We cannot ask or expect more from the judicial branch.