Congress and the Power To Declare War

The partisan divide over Iran achieved new heights yesterday. Rumors circled around the US that President Obama was considering taking his prospective “executive agreement” nuclear deal with Iran to the UN Security Council. Once at the UN, the president hopes to enshrine the agreement into international law. By completely bypassing the US Congress, Obama would place the UN’s authority above that of the US Constitution. For an ex-professor of constitutional law — who campaigned vigorously against the notion of an “imperial president” — Obama’s threat could very easily lead this country into a severe constitutional crisis.

The US Supreme Court has ruled (on more than one occasion) that international law is secondary to US law. A mere “executive agreement” has literally no weight in US law. In other words, in the case of the Iranian dictatorship Obama would, in essence, be signing on to a potentially temporary and personal understanding between himself and the current Supreme Leader of Iran’s Islamic Republic. It would be nothing more than that. So what the president appears to be proposing is to use his own high office and the UN Security Council as a shield to protect a mere “gentleman’s agreement” (ironically involving the future of the entire Middle East) from any Congressional oversight and approval. By bypassing Congress, this president hopes to make it very difficult for the next president to rescind what has been referred to as Obama’s legacy nuclear deal. This would be especially true if, after two years, the deal had the full weight of international law and UN Security Council sanction.

But wait a minute! As President Obama has stated on more than one occasion, it is Congress alone that must decide on issues of war and peace. According to Obama, it is only in times of imminent threat that the president has the authority to initiate a defensive attack against an enemy. This view is in direct accordance with the Constitution of the United States. The Congressional authority to declare war is enshrined in Article One, Section Eight of America’s founding document. In fact this legal, constitutional precedent was the reason why Obama decided in September 2013 to abandon executive action and leave the decision of an attack on Syria to Congressional approval. Back then Obama’s instincts were clearly against the notion of an “imperial president”. Now, however, eighteen months later Obama has taken a one hundred and eighty degree about-face. Instead of direct US Senate participation in a legal and binding treaty — as prescribed by Article II, Section 2, Clause 2 of the Constitution — this president has chosen to place the crown of global government upon his head and proceed to Britain, France, China and Russia for legal legitimacy.

Treaties have the authority of US law first and foremost. And while they can be enshrined into international law through the actions of the UN Security Council, it is the fact that they are US treaties alone which gives them the weight of US law. According to the Supreme Court, there is no law above US law. Now Obama threatens to change this legal formulation, and his political party must decide if they will go along with him. This is no small matter. When the 47 Republican Senators signed on to a letter explaining the nature of “executive agreements” to the Iranian leadership, the Democratic Party was outraged. But will there be the same outrage when (and if) an Iran nuclear deal is signed by this president without Congressional approval? And if it is also sent on to the UN without approval, how is that going to play out for the Democratic Party in the next election?

For the last seventy-five years, foreign policy has been the prerogative of the executive branch of the US government. But it hasn’t always been that way. Franklin D. Roosevelt had a terrible time with own party in Congress (and with the Republicans, too) in shaping a non-isolationist international agenda. It was only through the events of December 7, 1941 (the Japanese bombing of the American fleet at Pearl Harbor) that Roosevelt was given the leeway to alter the direction of war and postwar US foreign policy. But Roosevelt never bypassed the US Congress. The US is a member of the UN because its membership is enshrined in US law by a Senate-approved US treaty. Not only was the UN Charter ratified through Congressional approval, but the terms of US involvement in UN military actions were passed by the full legislative body under a bill known as the “United Nations Participation Act”.

Now former constitutional law professor Obama would obliterate the Roosevelt and Truman UN legacy and completely override the authority of the “people’s house”, the US Congress. Talk about an “audacity of hope”, there is no way that this Congress will not attempt to stop such an audacious executive overreach. The only question that remains to be seen is whether or not the Democratic Party — and its next presidential candidate — will demand that Obama submit the Iran nuclear deal for Congressional approval. Forget the Republican letter to the Ayatollah Khamenei; the issue of the supremacy of the US Constitution is of exponentially greater concern than a mere letter to a so-called supreme leader. One can only imagine the howls coming from all sections of the American political landscape over an actual Obama and Democratic Party turn toward “world government”. This president must be completely devoid of any understanding of American cultural and political history to contemplate such an action.

Even Hillary Clinton, in her outrage over the Republican letter, hinted strongly that Congressional oversight of a US-Iran nuclear deal was tantamount to a necessity. It’s very easy to read, clearly and unambiguously, the meaning between the lines of Secretary Clinton’s words. “The president and his team are in the midst of intense negotiations. Their goal is a diplomatic solution that would close off Iran’s pathway to a nuclear bomb and give us unprecedented access and insight into Iran’s nuclear program. Now, reasonable people can disagree about what exactly it will take to accomplish this objective, and we all must judge any final agreement on its merits”.

I’m nearly certain that Mrs. Clinton didn’t mean Britain, France, Russia and China when she said that “we all must judge any final agreement on its merits”. But in the final analysis, it will be up to the Democratic Party to decide on how to proceed with their own “imperial president”. Because if this very bad deal goes forward, Israel will be loath to accept it. And Israel, under its current prime minister, has spoken most eloquently under the US Congressional Dome. This nuclear deal with its short sunset clause is highly suspicious. Instead of a “solution that would close off Iran’s pathway to a nuclear bomb” (Clinton’s words), it would establish a timetable that will become “Iran’s pathway to a nuclear bomb” (Netanyahu’s words). Israel expects that the US will have its back, if and when it decides to act in opposition to this bogus Iranian nuclear deal. And let’s be completely clear, in the United States of America it is the Congress, and only the Congress, who holds the power to declare war.

When and if the time comes, it will be the Congressional majority who will decide on the issue of war or peace with Iran. The Republican Party won the 2014 Congressional election, and they control both Houses of Congress. But they don’t have the two-thirds majority necessary to override a presidential veto. If the Democratic Party wills it, Obama’s nuclear détente with Iran could proceed to the UN without Congressional approval. However if push comes to shove against a tyranny in Tehran, with Iran hell-bent on Middle East domination and with a horrific ten-year plan leading to unlimited nuclear capacity, Israel will not just sit idly by. Prime Minister Netanyahu was clear and precise when he declared before the full body of the US Congress: “The Jewish people are no longer defenseless”! And the prime minister was loudly and unambiguously cheered for this declaration!

I repeat, when and if the time comes, it will be up to a simple majority in Congress to decide whether or not America has Iran’s back, or Israel’s. By then all of Obama’s constitutional obfuscations will melt away, and the clarion voice and intention of America’s founders will be heard throughout the land. In the United States, as in Israel, the people must always have the final word.

About the Author
Steven Horowitz has been a farmer, journalist and teacher spanning the last 45 years. He resides in Milwaukee, Wisconsin, USA. During the 1970's, he lived on kibbutz in Israel, where he worked as a shepherd and construction worker. In 1985, he was the winner of the Christian Science Monitor's Peace 2010 international essay contest. He was a contributing author to the book "How Peace came to the World" (MIT Press).
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