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Declaring War


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Friday, September 26, 2014, by Frank Kuchar

President Obama has finally committed to a more serious attack upon ISIS this week, albeit reluctantly. I say this because he refused for so long to refer to our being at war with ISIS. Furthermore, he failed to get congressional approval before launching these attacks, regardless of whether or not he complied with the unconstitutional (in my opinion) War Powers Act of 1973.

Article I, Section 8, Clause 11 states that the power to declare war rests with Congress, not the Executive branch. The chief executive is to be the commander of the armed forces once hostilities are engaged, but he cannot, constitutionally, initiate those hostilities. He can, if we are directly attacked, respond in our defense without prior approval, but that is not the case with this week’s attacks.

Are we engaged in a war with ISIS? What does the Constitution mean “to declare war” and why did the founders withhold such authority from the president?

Simply defined, war is a conflict between two or more opposing parties, the intention of which is to inflict harm or death upon the other until the one side submits to the will and control of the victor. Obviously we are indeed engaged in a war with ISIS.

As to what is meant to declare war, it used to be that a king of one country would announce that he was going to war against another. However, by the time of the writing of our Constitution, even Alexander Hamilton admitted in The Federalist 25 that this formality had “as of late fallen into disuse.” So why then was the phrase inserted? It was necessary, our founders felt, that one individual not have the sole power to commit the entire nation to a war, the cost of which in terms of money and lives would be borne by the people and their liberties put at risk. Those who raised concerns about too much power being handed over to the new federal government, the Antifederalists, expressed grave concerns in this regard and so the power to engage in hostilities was reserved to those representing both the people and the separate, sovereign states.

This being the case, then, what does the phrase mean if by then it had fallen into disuse? Simply this: it is a formal pronouncement to the other nations of the world that hostilities have in fact erupted between some nation/group and the United States and that any nation which aligns itself with that nation/group could suffer harm as a result.

Therefore, President Obama should have requested a formal declaration of war since we are bombing the sovereign territory of Syria and Iraq (and possibly others before all is said and done). Such action should have been taken a few months ago. His speech before Congress could have gone something like this:

“Representatives of the House and members of the Senate. I come before you today to acknowledge that the terrorist organization known as ISIS has proclaimed their intention to attack and ultimately conquer the United States and that as such, we are now engaged in hostilities of war with them. I therefore request that this body, as it is constitutionally ordained to do, pronounce that these hostilities exist and that any future attacks the United States makes upon them, regardless of the national territory in which they might be found, will not constitute an attack upon that nation unless they are an active supporter and ally of ISIS.”

This declaration would have granted him the constitutional authority to execute the attacks we see happening this week without putting us at risk of being accused of going to war with other nations such as Syria. Unfortunately, President Obama neither knows anything nor cares about our Constitution; after all, he is “the king.”

— Frank Kuchar

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