In Tokyo on Monday, President Joe Biden extra-constitutionally pledged a United States military response to China to defend Taiwan.
Congress should demand that Biden retract his claim of extra-constitutional war powers or be reminded of a promise he made as a senator to impeach a past president for similar actions.
As George Mason explained at the constitutional convention, “attempts to subvert the Constitution” were paradigm impeachable offenses. There was no ambiguity in Biden’s exchanges with a reporter:
REPORTER: You didn’t want to get involved in the Ukraine conflict militarily for obvious reasons. Are you willing to get involved militarily to defend Taiwan if it comes to that?
BIDEN: Yes.
REPORTER: You are?
BIDEN: That’s the commitment we made.
Tokyo was not the first occasion in which Biden asserted extra-constitutional authority to take the United States to war in defense of allies.
In August, after withdrawing United States troops from Afghanistan, Biden volunteered that the United States would resort to military force to defend a NATO member from aggression and added, “same with Japan, same with South Korea, same with Taiwan.”
On Feb. 24, President Biden maintained with feistiness: “[T]he United States will defend every inch of NATO territory with the full force of American power.”
As a United States senator, Biden voted in favor of the Taiwan Relations Act, which provides:
“The President is directed to inform the Congress promptly of any threat to the security or the social or economic system of the people on Taiwan and any danger to the interests of the United States arising therefrom. The President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.”
The identical reference to constitutional processes is used in Article 11 of the NATO treaty to determine the United States’ response to aggression against a NATO member. Constitutional processes entrust to Congress, not the president, decisions to engage in war.
James Madison, the father of the Constitution, underscored, “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.” Alexander Hamilton elaborated in “Federalist Papers No. 75” that presidents would subordinate national interests to personal ambitions in international relations.
Indeed, every participant in the drafting and ratification of the Constitution understood that war power was assigned exclusively to Congress. That understanding was echoed by Secretary of State Dean Acheson in supporting NATO before the Senate Foreign Relations Committee.
Before entering the White House as a candidate for the Democratic presidential nomination in 2007, Biden agreed. He promised to lead the charge to impeach President George W. Bush if he attacked Iran over its nuclear program without a prior congressional declaration of war in an interview with Chris Matthews on NBC:
MATTHEWS: You said that if the president of the United States had launched an attack on Iran without congressional approval, that would have been an impeachable offense.
BIDEN: Absolutely.
MATTHEWS: Do you want to review that comment you made? Well, how do you stand on that now?
BIDEN: Yes I do. I want to stand by that comment I made…I was chairman of the Judiciary Committee for 17 years, or its ranking member. I teach separation of powers and constitutional law. This is something I know. So I got together and brought a group of constitutional scholars together to write a piece that I’m going to deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people, unless we’re attacked or unless there is proof that we are about to be attacked. And if he does, I would move to impeach him.
President Biden’s persistent and false claims to war powers create a clear and present danger to our constitutional order. The latest risk is a disastrous war with China that might escalate to nuclear weapons. Biden’s remarks infuriated the Chinese government. Foreign Ministry spokesman Wang Wenbin warned, “On issues concerning China’s sovereignty, territorial integrity and other core issues, China has no room to compromise.”
History may not repeat itself, but it rhymes, according to a quote attributed to Mark Twain. China intervened in the Korean War against the United States with 3 million civilians and military personnel after General Douglas MacArthur threatened its territorial integrity by racing troops towards the Yalu River. President Biden’s gratuitous bellicosity with China over Taiwan heights the risk of a Chinese attack to defend its great power standing after centuries of humiliation by the West and Japan.
If the latter happens, it will be for Congress to decide how to respond and whether to risk nuclear armageddon, not one man or woman in the White House tempted to overreact to win fame and remembrance.
President Biden needs to walk back his serial claims to presidential war powers without tarry. Otherwise, he will have demonstrated his unfitness as a steward of the Constitution as his constitutionally prescribed oath of office mandates.
Bruce Fein was associate deputy attorney general under President Reagan and author of “American Empire Before The Fall.”