The American Revolution was fought to purge “the King can do no wrong” from our legal universe. The rule of law would be king. The king would not be law.
The United States Supreme Court elaborated in United States v. Lee (1882): “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law and bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of authority which it gives.”
As the United States abandoned the Republic whose glory was liberty for an Empire whose glory is raw military power and the armored knight, the American Revolution was undone on the installment plan rather than in one fell swoop like Napoleon’s 18th of Brumaire. The pendulum has swung back to the equivalent of “the King can do no wrong” in the guise of limitless presidential power.
Foremost is the authority to play prosecutor, judge, jury, and executioner to kill any person on the planet the President says is a national security threat based on secret, unsubstantiated speculation hidden from Congress, the judiciary and the American people under the state secrets doctrine. There is no better definition of tyranny.
Is it surprising that President Donald Trump proclaimed without pushback on July 23, 2019, “Then I have Article 2, where I have the right to do anything I want as president,” and made obstruction of justice a way of life at the White House?
President Joe Biden is more of the same. In the manner of a sound track, he has repeatedly maintained that he will employ military force against China if it attacks Taiwan and against Russia if it attacks a NATO member. No dissent from Congress or the mainstream media. But the lawlessness of Biden’s threatening presidential wars is in plain view.
James Madison, father of the Constitution, amplified: “In no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” President George Washington ,who presided over the constitutional convention, affirmed, “The Constitution vests the power of declaring war with Congress; therefore, no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.” All other participants in making the Constitution sang in unison like a Greek chorus.
President Biden’s disregard of the law reached its zenith in his Orwellian interpretation of section 5 of the NATO treaty to authorize presidential wars in response to aggression against a member. The section provides:
“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”
Article 11 provides that the constitutional processes of the respective signatory nations will determine their responses to aggression: “This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.”
The United States Constitution endows Congress alone with authority to resort to war in the Declare War Clause. Not a syllable was uttered during the course of NATO ratification doubting that Congress, not the President, would decide how to respond to an invasion of NATO territory.
The day the text of the proposed NATO Treaty was made public in 1949, Secretary of State Dean Acheson explained that Article 5 “does not mean that the United States would be automatically at war if one of the nations covered by the pact is subjected to armed attack. Under our Constitution, the Congress alone has the power to declare war.” Acheson reiterated that understanding in his letter transmitting the treaty to President Truman.
Acheson emphasized the point to the Senate Foreign Relations Committee, which summarized his testimony in its report on the treaty. The “question was repeatedly asked” whether the United States was “obligated to react to an attack on Paris or Copenhagen in the same way it would react to an attack on New York City? In such an event does the treaty give the President the power to take any action, without specific congressional authorization, which he could not take in the absence of the treaty? The answer to both these questions is ‘No’…Nothing in the treaty increases or decreases the constitutional powers of either the President or the Congress or changes the relationship between them.”
Committee chairman, Sen. Tom Connally, in response to charges that the NATO Treaty would automatically bind the United States to go to war in the event of an armed attack, retorted, “I challenge anyone to find such a commitment. The full authority of the Congress to declare war, with all the discretion that power implies, remains unimpaired.”
If President Biden can ignore the Constitution and the NATO treaty regarding war powers, he has broken free of the Constitution and the rule of law entirely. He and a long line of his predecessors have proclaimed a principle that lies around like a loaded weapon ready for use to write an epitaph to the American Revolution. It is only a matter of time. We have forgotten Thomas Jefferson’s wisdom, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
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