With the news Sunday that President Joe Biden reportedly authorized Ukraine to use U.S.-supplied long-range missiles for airstrikes in Russian territory, some internet users have accused Biden of operating outside the scope of constitutional authority.
“This Is An Unconstitutional Act Of War!” tweeted well-known conspiracy theorist Alex Jones.
Former Lt. Gen. Michael Flynn, a longtime Trump ally who briefly served as national security adviser in 2017, argued on his Substack that Biden should be impeached for assuming illegitimate authority. “Duty also falls on the current House of Representatives to impeach Biden now for endangering the nation by taking steps that constitute acts of war without a Declaration of War— a power the Constitution gives only to Congress,” he wrote.
“Allowing Ukraine to use our missiles for offensive purposes is the equivalent of a declaration of war,” tweeted the X account “Insurrection Barbie,” which has more than 700,000 followers. “Biden doesn’t have the authority to make that decision on his own. It must come from Congress. Is anyone suing to stop him from this unconstitutional power grab?”
Biden’s authorization is neither unconstitutional nor a declaration of war. “The decision to supply missiles does not create a state of war between the U.S. and Russia or initiate armed conflict between the US and Russia,” said Michael Ramsey, a distinguished professor of law at the University of San Diego with expertise in constitutional law and war powers. Ramsey explained that the declaration of war clause—in Article I of the U.S. Constitution, the section on Congress—vested the authority to “initiate a state of war” with Congress. While that “may be read broadly to govern the decision to initiate hostilities,” Ramsey explained, “since the president is not doing that, the clause does not apply.”
But what about Flynn’s claim that Biden was “taking steps” toward initiating a war? Does the president have that authority? It largely depends on what those steps are. “The clause is generally not read to restrict the president’s power to act in provocative ways,” Ramsey told The Dispatch Fact Check, “so long as the president does not direct the beginning of armed hostilities.” Concerns over a potential armed response from Russia is “a geostrategic question, not a legal question,” he added.
Tom Renz, a right-wing video podcaster with more than 280,000 followers on X, argued that Congress has the authority to stop the move through the War Powers Resolution Act of 1973. “BREAKING: President Biden authorizes Ukraine to start a war with Russia,” he tweeted. “The War Powers Resolution specifically states that the President may not introduce American Armed Forces into hostilities unless there is: a declaration of war, specific statutory authority or an attack. All we have to do to stop this is to have Congress quit funding Ukraine. Why are we trying to start WW3 before Trump gets in?”
This claim that Congress can stop Biden’s decision by no longer funding Ukraine is partially false. It is unclear what Renz means by “quit funding.” Congress could always pass legislation to prevent Ukraine’s use of American-made missiles in Russia or any other country—but it has not done so. Furthermore, Ramsey noted that Congress could have imposed “statutory limits on its use” in its legislation authorizing military aid for Ukraine that would have prevented Kyiv from firing missiles into Russian territory. But Congress did not do that either.
Renz’s broader claim about the War Powers Resolution—passed by Congress in 1974 after overriding a veto from former President Richard Nixon—is also false because that federal law does not apply to Biden’s decision. Similar to the declaration of war clause, permitting Ukraine to use U.S.-supplied missiles in Russian territory is not an act of introducing “armed forces into hostilities.”
“I’m not aware of previous situations in which supplying arms to an ally, knowing that the ally would use them against a third country, was thought to implicate either the [War Powers] Resolution or the declare war clause,” Ramsey said. “For example, the U.S. president supplies weapons to Israel that Israel may use against Iran or Syria, and that is not thought to raise legal or constitutional questions.”
Ben Swann, another right-wing video podcaster, falsely claimed on Tuesday that U.S. soldiers operate the U.S.-supplied missile systems used in Ukraine’s military strikes. “They cannot be operated by the Ukrainians,” Swann said on his show in a video clip later posted on X. “The system is set up in a way that it has to be U.S. soldiers who are on the ground, and U.S. soldiers who are firing them from Ukraine.”
To support his claim, Swann cited allegations made by the Russian government in June that accused the U.S. military personnel of directly assisting Kyiv in an air strike in the Crimea region. Both Russia’s defense ministry and Foreign Minister Sergei Lavrov accused the U.S. military of “direct participation” in the attack, claiming that the flight information of U.S.-supplied missiles used in the attack was programmed by U.S. military personnel using U.S. satellite data. The U.S. has denied those claims and the use of U.S. troops in the war.
As a White House National Security Council spokesperson told the BBC at the time, “Ukraine makes its own targeting decisions and conducts its own military operations.” Pentagon press secretary Maj. Gen. Pat Ryder also squashed speculation that U.S. soldiers have been, or will be, involved in Ukraine’s military operations: “The bottom line is the President and the Secretary [of State Antony Blinken] have been clear that we’re not going to send U.S. troops to fight in Ukraine, and that won’t change.”
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