Mark Levin declared the War Powers Act of 1973 “unconstitutional” and criticized lawmakers who cited it as a reason to support a similar resolution passed Thursday in the House of Representatives as an intended check on President Trump’s power to take military action.
“The War Powers Act of 1973 is unconstitutional,” Levin said on “The Mark Levin Show” on Westwood One. The resolution requires a president seeking to engage in military conflict –whether through the declaration of war or “response to a national emergency created by [an] attack upon the United States, its territories, possessions or armed forces”– obtain the consent of Congress.
Levin said the act, authored by former Rep. Clement Zablocki, D-Wis., was rightfully vetoed by former President Richard Nixon.
Despite Nixon’s veto, Levin recalled, the Democrat-controlled Congress overrode his rejection and the resolution became law.
The “Life, Liberty & Levin” host added that nearly every president since Nixon has believed the act to be constitutionally questionable, and noted the Supreme Court has never ruled on its constitutionality.
“So to watch Mike Lee and Rand Paul and Matt Gaetz and others acting as if it’s constitutional really is quite appalling to me,” he remarked.
Noting that some Republican supporters of House Democrats’ resolution have claimed the libertarian mantle in their departure from the general party line, Levin said the U.S. Constitution is “not a libertarian document.”
“It is what it is,” he continued, adding that Nixon vetoed the resolution based on Constitutional grounds.
Levin said the California Republican was concerned at the time that the War Powers Act would define his executive power in a way that would limit his defined authority.
He also pointed to Founding Fathers’ debate of the language in Article I that gives Congress the power to “declare war.”
“The framers actually consciously substituted-out ‘make war’ with ‘declare war’,” he said, quoting Josh Hammer in the “Daily Wire.” “‘Make war’ was rejected.”
Levin said the move was a cautious action supported by former President James Madison, who the host said told former Vice President Elbridge Gerry that ‘declare war’ allowed for the presidential power to “repel sudden attacks” on the homeland.
“The framers understood that there was great merit to leaving decisions such as the commencement of hostilities to one man, not to a fractious Congress,” he said, again quoting Hammer.
Levin said Thursday’s exercise has shown that libertarian-minded lawmakers have been “cherry-picking” their Constitutional decrees.
“I would ask these radical libertarians, does Congress have the power to tell a president to go to war?” he continued, going on to criticize Lee for how he responded to a classified briefing held with White House officials on the Iran matter.
“The Constitution does not confer on Congress the power that Rand Paul, Mike Lee, Matt Gaetz and others — some of them are my friends — claim that it does. The War Powers Act is fundamentally unconstitutional. Congress does not have the authority to micromanage a president as commander-in-chief. The right to declare war does not give them that authority.”