Barry Fagin

Article 1, Section 8 of the Constitution says “Here’s a list of what the U.S. Congress can do.” The Tenth Amendment says “And that’s it.” If it’s not on the list in Article 1, the power to do it is “reserved to the States respectively, or to the people.”

Creative interpretations of phrases like “general welfare” and “regulate commerce” have, in my view, given Congress way more authority than the Founders intended. That said, every once in a while, Congress folds up like a lawn chair. Since Sept. 11, 2001, Congress has consistently wimped out on one of its most important enumerated powers: The power to declare war.

There are very good reasons why the power to declare war should be invested in the legislative branch, and not the executive. The Founders recognized that the temptation for a single person to declare war, as in a monarch, would be too strong to resist. War is one of those rare things that only a government can do. Since it is the citizens themselves who will fight and die, and the citizens themselves who will send their children to do so, that decision should be made in the most democratic way possible.

The decision to go to war must be a national one. That choice logically lies with the legislative branch. The President is the Commander in Chief of the Armed Forces, and the conduct of the war will ultimately be his or her responsibility. But the decision to go to war must reside with the most democratic of the branches of government.

That is why that power was specifically included in Article 1, Section 8. The Founders had had enough of kings plunging their countries into senseless wars of ego, plunder and conquest. If war was to be had, it would be expressed as the will of the people. Not the will of an autocrat.

Fast forward to 2001. A few days after the World Trade Center attacks, Congress passed Public Law 107-40, a joint resolution stating the president was “authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11 …”. Despite its narrow wording, presidents of both parties have used that resolution to attack nations at will, either citing legal justification or simply not worrying about it, confident the American public will support any presidential actions against any organization they deem a threat.

Since 2001, presidents of both parties have undertaken military action of one form or another in Afghanistan, Iraq, Libya, Pakistan, Somalia, Syria, and Yemen. (And in case you think this is all due to those war-mongering Republicans, the Bureau of Investigative Journalism reports that Obama-Biden ordered almost nine times as many drone strikes as Bush-Cheney, and killed six times as many people).

Is Iran next? Trump doesn’t seem to want to go to war with Iran, hopefully because it would be political suicide. His base is largely working-class, and it is their sons and daughters who will fight and die. But even if he isn’t eager to attack Iran, he is surrounded by people who are: Neocons and alt-right nationalists who never met a war they didn’t like. Hardly surprising. They’ll never see combat.

Perhaps what we have done and are doing in Afghanistan, Pakistan, Yemen, and elsewhere are necessary military actions. Perhaps not. Perhaps war with Iran is necessary. Perhaps not.

But if we’re at war with all these countries, that ought to be up to the American people, through our representatives in Congress, to say so.

Congress should show some guts, repeal Public Law 107-40, and either declare that America is at war or else stop funding one. Declaring war is one of the few things the Constitution explicitly allows them to do. Senator Michael Bennet, Sen. Cory Gardner, and Congressman Doug Lamborn, are you going to continue to allow presidents of either party to wage perpetual war without your approval? Or are you going to carry out your Constitutionally mandated duty?

We await your answer.

Barry Fagin is Senior Fellow at the Independence Institute in Denver. His views are his alone. Readers may write Dr. Fagin at

Barry Fagin is Senior Fellow at the Independence Institute in Denver. His views are his alone. Readers may write Dr. Fagin at

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