Joe Biden's Case That Waging War Without Congress Is an Impeachable Offense

He took that position after years as a U.S. senator, and taught it during lectures on the separation of powers. 
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Reuters

President Obama has been criticized by me and others for proceeding as if he has the legal authority to authorize acts of war against Syria, even though he declared in writing as a U.S. senator, "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

It turns out that his Democratic primary opponent and eventual running mate, then-Senator Joe Biden, had even stronger views about presidents attacking other nations without Congress's permission:

Chris Matthews: You said that if the United States had launched at attack on Iran without Congressional approval, that would've been an impeachable offense. Do you want to review that comment you made?

Joe Biden: Absolutely. I want to stand by that comment I made. The reason I made the comment was as a warning. I don't say those things lightly, Chris. you've known me for a long time. I was Chairman of the Judiciary Committee for 17 years. I teach separation of powers in Constitutional law. This is something I know. So I 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 that the president HAS NO CONSTITUTIONAL AUTHORITY to take this country 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. The House obviously has to do that, but I would lead an effort to impeach him. The reason for my doing that -- and I don't say it lightly, I don't say it lightly. 

This is a striking statement.

It isn't that Biden hadn't thought very carefully about this issue before entering the executive branch, and then discovered in the vice-presidential residence that, upon reflection, the president really should have the unilateral authority to take America to war absent an actual or imminent threat. 

Rather, he reflected deeply on the law for almost two decades, through numerous presidencies, as chairman of the Senate Judiciary Committee; consulted a whole group of constitutional scholars; taught constitutional law classes on the separation of powers; and went on national TV while running for president to declare unilateral executive-branch war-making a high crime!  

But now that he's part of an administration openly pondering strikes on Syria without Congressional approval -- even as dozens of legislators demand to be consulted -- Biden doesn't have any public objections, and the position he and his constitutional experts once asserted is treated as a naive curiosity in the press. If intervention in Syria causes some Republican legislator to push impeachment, just remember that Joe Biden once subscribed to his or her logic. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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