In this year 2026, the Chief Executive of the United States, acting quite alone, has twice cried Havoc! and let slip the dogs of war—first against Venezuela and then against Iran, killing their national leaders and thousands more. He probably soon will attack Cuba. And he has threatened to invade Greenland, a territory of a close ally, Denmark. Is all this legal?
First of all, does it matter whether or not it is legal? Or is it “stupid” and a sign of weakness to try to abide by rules in today’s fast-moving world, as the “Secretary of War” has loudly asserted? To answer this question, we must understand what is a constitution. It is not a museum piece. It is the framework in which everything happens, the rules of the game. For example, football is possible and interesting only because of a complicated rule book—an agreed line of scrimmage, a field exactly 100 yards, only 4 downs allowed, no off sides, etc., etc.—and referees to enforce them. If all rules (including the criminal code) were suddenly abolished in the middle of a game, what would happen? The game suddenly would turn into a knife fight, and those who brought more knives would win—whatever winning means in that situation. The players would suddenly return to the state of nature, and their lives quickly would become nasty, brutish, and short. Only the rulebooks prevent that. Abiding by the rules is much more important than who wins. If someone does not like a rule, he cannot just ignore it. No one can. That is what it means to have a regime of laws and not a regime of men.
The Constitution of 1787 is our rule book. What does this rulebook say about whether one-man wars are legal? To answer that we must, as always, look to the “original intent” of the text of the Constitution (not to alleged explanations by the individual politicians who wrote it). All laws, great and small, mean what they were intended to mean when they were enacted. That is a foundational legal principle. The text of the Constitution of 1787 is plain and evident:
(1) Article I, Section 1, vests all rule-making powers in the Congress of the United States. “All” means all. So, everything that involves rules is controlled by Congress: who has weapons, who pays for them, who gives the orders, when the soldiers march, who is the enemy, in short everything the military is and does. These rules are the “supreme law of the land.”
(2) Article II, Section 1, vests in the President only “the executive power.” “Executive” means the power to execute only the rules, not whomever the President feels like executing today. Think of the “executor” of a will. It is not that he can do anything he wants unless there is a clause in the Will against it. Rather, he must follow all clauses meticulously, whether he likes them or not. It would be absurd for the executor to ignore the Will and distribute the proceeds as he sees fit.
(3) Article I, Section 8, grants the power to declare war only to Congress. This does not mean that anyone can declare war. It means only Congress can. And the power to declare war necessarily implies the power to judge whether or not a war is advisable. This decision requires debate and compromise, and that can occur only in Congress. And that policy necessarily sets the country’s foreign policy.
(4) In addition, other specific powers to control foreign policy are granted to Congress. For example, Article II, Section 2, vests the treaty-making power in the Senate. And that power too necessarily involves the power to judge whether or not a treaty is advisable—in other words to set foreign policy.
(5) Obviously, the Congressional power to control foreign policy and to judge whether an important military action is advisable does not mean that Congress may or may not formally declare a war, but the Chief Executive can start undeclared wars at will. All “undeclared” wars are unconstitutional.
(6) Equally obviously, the Constitutional rule is not that the Chief Executive alone can start wars, and then Congress may or may not overrule him. (This is the assumption of the War Powers Act, which seeks only a veto power over wars already in progress.) All wars that are intentionally started before a declaration of war are unconstitutional.
(7) If the Chief Executive does do not like the Constitution, or if he thinks it is hopelessly old-fashioned and not suited to the modern world, then he has to amend it—not just ignore it. Of course, he does not have the votes to do that. And that is telling.
(8) All of the above is an example of the working of checks and balances between the different branches of government, one of the most fundamental principles of the Constitution and the cause of America’s durability and strength.
Therefore, the Chief Executive, in ignoring the Constitution, has broken “the supreme law of the land.” And that is a high crime. And high crimes, under the Constitution, are punishable with impeachment. This conclusion has nothing to do with whether or not we like the Chief Executive’s wars. If we make exceptions to the rules, there are no rules. Then we all are in deep trouble.
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