By way of a letter addressed to the speaker of the House and the president pro tempore of the Senate, President Joe Biden announced “United States Armed Forces personnel with appropriate combat equipment deployed to Djibouti, Ethiopia, and Sudan.”
Then, in a statement sounding eerily like the Authorization for Use of Military Force (AUMF) that was used as the legal support for the deployment of thousands of American troops in Afghanistan for over 20 years, Biden declares that there will be American boots on the ground “until the security situation no longer requires their presence, and additional forces are prepared to deploy to the region if required.”
This fascination for perpetual war is something to which Joe Biden has demonstrated a consistent commitment.
As is to be expected, Biden props up his presumption of power on the duty “to protect United States personnel and others.”
Next, the president claims that his deployment of U.S. armed forces into a hostile combat zone is “pursuant to [his] constitutional authority as Commander in Chief and Chief Executive and to conduct United States foreign relations.”
Not surprisingly, there are a couple of constitutional problems with that statement.
First, the drafters of the U.S. Constitution were adamantly and consistently opposed to the establishment of a standing army in the United States (see my articles on that topic here and here).
Furthermore, Article II — the article of the Constitution setting forth the powers granted to the president — makes mention of the president’s role as commander in chief only in connection with a specific situation:
“when called into the actual Service of the United States.”
The president is not the commander in chief of the United States armed forces if those armed forces are not in the service of the United States, and those armed forces aren’t in the service of the United States unless they are fighting a war, and they are not fighting a war unless war has been declared, and war has not been declared unless Congress has declared war.
Congress has not declared war, therefore the armed forces are not at war, therefore the president is not the commander in chief right now.
Next, Biden points to the presidential power in foreign affairs as proof of his authority to send soldiers into an overseas war zone.
Let’s read together the powers granted to the president in the theater of foreign affairs:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls…. (Article II, Section 2)
He shall receive Ambassadors and other public Ministers…. (Article II, Section 3)
It takes some truly titanic exegesis to interpret those clauses to contain any authorization to send troops into combat!
No, if Joe Biden sincerely wanted to exercise his authority in the arena of foreign affairs, he would negotiate with the warring factions in the several countries named in his letter. Instead, he has chosen to send troops into harm’s way and to leave them there indefinitely.
In his letter, Biden claims that he has the “responsibility to protect United States citizens both at home and abroad.”
While I will agree that we all have a moral obligation to care for one another and, more specifically, to protect our families, there is not a single syllable of constitutional authority given the president to protect anybody. However, he does in fact have a constitutional obligation to protect something: the Constitution! The presidential oath of office requires the president to swear (or affirm) to “preserve, protect, and defend the Constitution of the United States.”
It’s ironic that, by the way he claims to be acting under his constitutional authority, Joe Biden is actually violating his constitutional oath of office!
Next, regardless of any extraordinary exegesis of Article II, there is no power whatsoever granted to the president to assume authority to send U.S. armed forces personnel into a foreign combat zone for any reason whatsoever.
In a letter called “Helvidius No. 2,” James Madison was so strident in his insistence that the power to make war not be placed in the presidency, that he begins that essay with the bold pronouncement that if any president were to presume the war-making power,
“no ramparts in the constitution could defend the public liberty or scarcely the forms of republican government.”
That’s James Madison warning us that if we were to permit (I say “we” because ultimately we elect men and women to Congress who close their eyes to the executive expansion of war) the president to exercise any power over the making of war, our liberty would be on life support.
The power to wage war is not in the president.
The power to bring our liberty back from the brink of destruction is in the American people. We must demand that our elected representatives exercise their constitutional authority to hold the president in check, preventing him from breaking his oath and from destroying our liberty.
