President Obama and his congressional cohorts have never paid much attention to our Constitution. Nancy Pelosi laughed off the idea of considering it when Obamacare was debated.
Much the same is true whether Obama is implementing Obamacare or brushing aside other constitutional limits on his powers. Remember the “concession” he made on requiring religious institutions to pay for contraception? He just amended the regulations to require the insurance companies to pay for it, without anyone paying them back. That, my friends, is what we call a “Fifth Amendment taking” for which the government — by seizing something belonging to a private citizen — is responsible to pay the damaged party, even if it is an insurance company.
Such constitutional abuses are commonplace these days, but last Thursday the Obama regime took a far more sweeping and dark turn in a Senate Armed Services Committee hearing. Defense Secretary Leon Panetta was testifying on possible military action against Syria. Under questioning by Sen. Jeff Sessions (R-Ala), Panetta said some things that need to be set out clearly before I analyze or characterize them.
The issue is Congress’s power to declare war. Under our Constitution, only Congress has the power to declare war (Article 1, Section 8, Clause 11) and this power is co-extensive with the power of the president as commander in chief. They — Congress and the president — are the only authorities named directly or indirectly as having a constitutional role in that decision.
When Sessions said that we are not dependent on a NATO or UN resolution to execute policies in defense of the nation, Panetta replied:
When it comes to the kind of military action where we want to build a coalition and work with our international partners then obviously we would like to have some kind of legal basis to do it as we did in Libya.
And then it got worse.
SESSIONS: “Do you think you can act without Congress and initiate a no-fly zone in Syria without congressional approval?”
PANETTA: You know, again — our goal would be to seek international permission. And we would — we would come to the Congress and inform you and determine how best to approach this, whether or not we would want to get permission from the Congress. I think those are issues we would have to discuss as we decide what to do here.
SESSIONS: Well I am almost breathless about that because what I heard you say is, “we’re going to seek international approval and we’ll come and tell the Congress what we might do, and we might seek congressional approval.”… Wouldn’t you agree that would be pretty breathtaking to the average American?
PANETTA: If we are working with an international coalition or NATO we would want to be able to get appropriate permissions in order to be able to do that. All of these countries would want to have some kind of legal basis on which to act.
SESSIONS: What “legal basis” are you looking for? What entity?
PANETTA: If NATO made the decision to go in, that would be one. If we developed an international coalition beyond NATO then obviously some kind of U.N. security resolution would be the basis for that.
SESSIONS: So you are saying NATO would give you a “legal basis”? And an ad hoc coalition of nations would provide a “legal basis”?
PANETTA: We would seek whatever legal basis we would need in order to make that justified. We can’t just pull them all together without getting the legal basis on which to act.
SESSIONS: I’m all for having international support, but I’m really baffled by the idea that somehow an international assembly provides a legal basis for the United States military to be deployed in combat. I don’t think it’s close to being correct. They provide no legal authority. The only legal authority that’s required to deploy the U.S. military is the Congress and the president and the law in the Constitution.
This is something new. It’s not just another incident of Obama and his administration cuffing our battered old Constitution, pushing it aside in some way that a court may easily remedy. Obama is amending the Constitution by fiat.
Panetta’s oath of office requires him to protect and defend the Constitution. In what must be seen as a brazen violation of that oath, he asserted that extra-constitutional authorities and “international” coalitions have power over America’s wars that are at least equal to if not superior than that of Congress. None of those alliances or coalitions, far less the UN, is named in our Constitution for any purpose. By engrafting them into the constitutional process, Obama and Panetta are quite literally overthrowing the Constitution and assuming quasi-imperial power.
Two things are quite evident. First, that Congress has allowed its war powers to atrophy since Korea. The slip-sliding away began then, when the Soviets — mistakenly boycotting the UN Security Council for some reason and thus missing a chance to veto — weren’t there when the Council passed its resolution on the Korean War which, in turn, became a de facto declaration of war.
Limits on presidential war making have never been popular and have always been a bit fuzzy. The War Powers Act, passed over Richard Nixon’s veto, is of questionable constitutionality but presidents have generally abided by it. Congress’s last assertion of real war powers was after American forces withdrew from Vietnam and congressional action cut off funding for the South Vietnamese, ensuring the North Vietnamese conquest of the south which followed quickly.
The “Authorization for Use of Military Force” passed after 9/11 is a model of vagueness, confusion, and deference to presidential power in time of war. It’s not a declaration of war but it should have been. Our government, in endless pronouncements, policies, and such, has created such a great ball of fog around our nation’s intentions that the last remaining clear signal is the declaration of war. When one is required, as in December 1941 and in September 2001, the clarity of a declaration has, in itself, a great power.
None of this is to say that Congress is the only constitutional authority to decide on war or peace. Presidential power is co-extensive and declarations of war are unnecessary in many if not most cases where U.S. forces must be put into action. For example, we have mutual defense treaties — such as the NATO treaty — that require us to defend our allies with military force. No one would say that, the Senate having ratified such treaties, a further declaration of war would be needed before we came to an ally’s defense.
But, again, this is different. By openly engrafting foreign groups and alliances into the Constitution, Obama is — unconstitutionally and thus illegally — both limiting Congress’s constitutional powers and duties and expanding his own. It is, quite literally, a breach of his — and Panetta’s — oath of office.
Which brings me to the final point. Were it not for the efforts of Sen. Sessions, we’d probably never had a chance to even hear what is going on. Sessions has revealed a constitutional crisis vastly more important than almost any other issue before us today. So where are the rest of the Republicans?
Why the silence? Is it more important to battle over some modern-day welfare queen’s demand for a contraception entitlement, or to spend more time on television discussing the latest polls?
This is an issue that demands unity and a concerted counterattack by all Republicans, especially those who believe that constitutional government must be preserved or America can no longer be America. Everyone — and I do mean everyone — should join with Jeff Sessions in counterattacking against Panetta and Obama’s cavalier constitutional abuse. Shame on all of those who don’t.
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