Natelson on Constitution and Issue of War Declaration on Russia

On a recent KGVO Talk Back program featuring Constitutional scholar Rob Natelson from the Independence Institute in Denver, one caller inquired about a possible declaration of war on Russia, especially after the revelation of possible war crimes.

Natelson counted down several of the recent conflicts that the United States has been involved with.

“To a certain extent in the 20th century, some of our presidents did (declare war),” he said. “They used various justifications. For example, the Korean War was part of a United Nations action. Lyndon Johnson used the Gulf of Tonkin Resolution to fight the Vietnam War. President George W. Bush also had the authorization for the use of military force (after the 9-11 attacks)."

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Natelson described the narrow situation where a President could unilaterally declare war.

“The meaning of the Constitution essentially is that the President could act unilaterally to protect the United States from invasion or attack,” he said. “Going to war in Ukraine, though, I think would require a declaration of war, or its equivalent. I think the authorization for the use of force in the case of the War on Terror was the equivalent of a declaration of war.”

On the subject of intervening in another country’s conflict, Natelson referenced the U.S. Revolutionary War.

“It was considered legitimate under international law to go to the aid of another state that's being wrongfully invaded,” he said. “That's what France did for us in the revolution. However, the declaration of war device is a way of ensuring that there's broad agreement that we should do that. That's why you require the approval of the House of Representatives and the Senate, as well as the president.”

Natelson said the Biden administration needs a broad consensus across the federal government in order to directly intervene in the Russian invasion of Ukraine.

“One of the lessons of some of these other actions in the 20th century is that when you do not have this broad consensus that is represented by a congressional declaration of war, then the President is handicapped in fighting the war,” he said. “And the war sometimes comes to a bad end, as happened with Vietnam. So I don't see any reason why if the President seeks to involve US military in Ukraine, why there would be any reason not to seek a declaration of war.”

Russian Premiere Vladimir Putin has stated that sanctions imposed by the United States are tantamount to a ‘declaration of war’.