Has the United States become what President Donald Trump recently condemned? Can the president fight any war he wishes? Can Congress fund any war it chooses? Are there constitutional and legal requirements that must first be met before war is waged?
These questions should be central to a debate over the U.S. involvement in Ukraine, Gaza and Iran. Sadly, there has been no great debate. The mainstream media are mouthing what the CIA is telling them, and only a few websites and podcasts are challenging the government’s reckless, immoral, illegal and unconstitutional wars.
Here is the backstory.
All power in the federal government comes from the Constitution and from no other source. Congress is restrained by the Constitution and by treaties to which the U.S. is a party.
Congress cannot legally declare war on Russia, Gaza or Iran since there are no militarily grounded reasons for doing so. Russia poses no threat to American national security, persons or property; nor do Gaza or Iran. Moreover, the U.S. has no treaty with Ukraine or Israel that triggers an American military obligation.
Under the Constitution, only Congress can declare war on a nation or group. The last time it did so was to initiate American involvement in World War II. But Congress has given away limited authority to presidents and permitted them to fight undeclared wars — such as the War Powers Resolution of 1973 and President George W. Bush’s invasions of Afghanistan and Iraq.
Congress has not only not declared war on Russia or Gaza or Iran; it has not authorized the use of American forces in those countries. Yet, it has given the president a blank check and authorized him to spend it on military equipment for Ukraine and Israel however he sees fit.
President Donald Trump came into office promising to end America’s forever wars. Instead, the United States continues to fund a war his predecessor entered into in Ukraine, the goal of which was to eliminate Russian troops from Ukraine and Crimea and Russian President Vladimir Putin from office. None of these objectives is realistically attainable. In Gaza, the Israeli goal has been to remove by death or force all Palestinians from their ancestral land. That goal, which is morally reprehensible and militarily unfeasible, has produced more than 55,000 civilian deaths — none of this to the benefit of the U.S.
In Iran, the president lulled the Iranians into believing that the U.S. was seriously negotiating with them, while U.S. intelligence assets planned and helped execute the Israeli attacks on Tehran last week, some of which murdered the negotiators. Does Iran, which U.S. and Israeli intelligence have concluded has no nuclear weapons as Israel does, pose the slightest threat to U.S. national security? It does not.
We don’t know how many American intelligence officers are in Ukraine, Gaza or Iran. But we know that they are there. During Trump’s first term in office, the CIA built 20 facilities for its officers and agents across Ukraine. We also know that they are involved in hostilities, since much of the U.S. hardware used against Russia and Gaza and in defense of Israel requires American know-how to operate and maintain.
Are American intelligence officers killing Russian soldiers, Gazan civilians and Iranian officials? The White House prefers not to answer, yet none of this has been authorized by Congress.
Now back to the Constitution.
The War Powers Resolution, which requires presidential notification to Congress of the use of American military force, is unconstitutional because it consists of Congress giving away one of its core functions — declaring war. The Supreme Court has characterized delegating away core functions as violative of the separation of powers, and thus unconstitutional.
Moreover, that statute only applies to the military. It does not constrain or require reporting of the use of intelligence personnel to fight wars.
Nevertheless, Trump has not informed Congress of his intentions to use American troops violently. Yet, he has used the Navy, the Air Force and the CIA to attack civilians in Yemen — a war crime — and he has soldiers out of uniform in Ukraine, so as to perpetuate the Biden-era deception that American boots are not there on the ground.
Don’t be surprised if Trump gives War Powers Act notice secretly to the Gang of Eight. That’s the Congress within the Congress. It consists of the chairs and ranking members of the House and Senate Intelligence Committees and the Republican and Democratic leaders of the House and Senate with which the president legally shares secrets.
Just as Congress cannot delegate away its war-making powers to the president, it cannot delegate them away to the Gang of Eight. The concept of the Gang of Eight is antithetical to democratic values. Informing them of whatever violence the president is up to is done under an oath of secrecy. What kind of democracy operates and kills in secret?
The various treaties to which the U.S. is a party limit its war-making to that which is defensive, proportional and reasonable. So, if a foreign power is about to strike — like on 9/11, while the government slept — the president can strike first in order to protect the U.S. Beyond an imminent attack, the basis for war must be real, the adversary’s anti-U.S. military behavior must be grave and imminent, the objective of war must be clear and attainable, and the means must be proportionate to the threat.
Have Russia, Gaza or Iran seriously threatened any grave acts against the U.S.? They have not.
Last month, in Saudi Arabia, Trump condemned the neocons’ forever wars and western military intervention in the Middle East. We now know he didn’t mean what he said. We have reposed the Constitution for safekeeping into the hands of those who ignore it. The consequences are deaths of innocents and the undermining of constitutional norms. And the U.S. continues to be what Trump verbally condemned.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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