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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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An Impeachable Offense

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Make no mistake about it: President Obama’s 90-minute telephone conference call with a group of congressional “leaders” to consult about his plans to initiate a military attack on Syria does not comport with the U.S. Constitution, the higher law that the American people have imposed on federal officials.

The Constitution is clear: The power to declare war lies with Congress, not the president. Like it or not, under our form of government the president is prohibited from waging war without a declaration of war from Congress. If someone doesn’t like it, he’s free to start a movement to amend the Constitution to enable the president to both declare and wage war.

From a legal standpoint, it makes no difference that previous presidents have waged wars without the constitutionally required congressional declaration of war. Prior violations of the Constitution do not operate as an implicit amendment of the Constitution. If Obama proceeds to carry out his threat to initiate war against Syria, he will be committing a grave constitutional offense.

The Framers did not want President Obama or any other president to have the omnipotent, dictatorial authority to send the entire nation into war on his own initiative. They knew that rulers inevitably embroil themselves in things like “saving face,” “maintaining credibility,” and “showing toughness.”

Under our system of government, it’s up to Congress to determine whether the United States should go to war against Syria. To secure a congressional declaration of war, the president is required to present his case before Congress — the entire Congress, not a few congressional “leaders” in a telephone conference call. In that way, all the elected representatives of the American people can consider the president’s evidence regarding the Syrian government’s purported use of chemical weapons, weigh the evidence, and then determine whether there is sufficient justification for the United States to declare war on Syria.

It should be noted that even if the president were able to secure a congressional declaration of war, that wouldn’t mean that such a war would be moral. From a moral standpoint, the U.S. government has no more business attacking Syria, with or without a congressional declaration of war, than it does attacking and waging wars of aggression against any other nation.

It’s up to Congress to begin enforcing this constitutional provision. The Constitution is our law — the people’s law — the higher law that the American people imposed on federal officials when the federal government was called into existence with the Constitution. If Congress won’t enforce our higher law, who will?

It’s obvious that the federal judiciary won’t enforce this constitutional provision. The reason? The Supreme Court says it’s because the issue is a political one — a “non-justiciable” one — one that the Court supposedly lacks jurisdiction to resolve.

That’s just nonsense. The real reason the Court won’t get involved in this area is because it knows that the president and the national-security state won’t obey its judgment anyway. So, the Court figures, why enter a judgment that a war is unconstitutional when the Court knows that it’s not going to be complied with?

That’s why the Supreme Court has steadfastly avoided doing its duty by judging undeclared wars in violation of the Constitution. Doing so would expose in stark fashion the supreme and omnipotent position that the national-security state apparatus (i.e., the military, the CIA, and the NSA) assumed in America’s governmental system after World War II, which was the last time that Congress declared war.

So, what should Congress do? It should impeach Obama, convict him, and remove him from office if he proceeds to violate the Constitution — our Constitution — the people’s Constitution — by sending the nation into war against Syria without the congressional declaration of war that the Constitution requires. What better way to encourage future presidents to comply with the Constitution?

 

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.