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Senate Rejects Amendment Reasserting Something Already in the Constitution

Spencer Brown
Spencer Brown  |  July 20, 2023 10:05 AM

While Russia's war against Ukraine rages on and new countries seek to join NATO in response to the Kremlin's aggression, the U.S. Senate voted down an amendment offered by Sen. Rand Paul (R-KY) on Wednesday that would have reasserted Congress' power — not NATO's — to start a war involving the United States. 

Sen. Paul introduced the amendment to the 2024 National Defense Authorization Act (NDAA) to make it clear that "[i]t is the sense of Congress that Article 5 of the North Atlantic Treaty does not supersede the constitutional requirement that Congress declare war before the United States engages in war."

By a vote of 16-83, the Senate rejected the amendment to reassert something already outlined in the U.S. Constitution all senators swore an oath to uphold. Those joining Paul in voting for the amendment were Senators Mike Braun (R-IN), Ted Cruz (R-TX), Steve Daines (R-MT), Bill Hagerty (R-TN), Josh Hawley (R-MO), Ron Johnson (R-WI), John Kennedy (R-LA), James Lankford (R-OK), Mike Lee (R-UT), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Marco Rubio (R-FL), Eric Schmitt (R-MO), Tommy Tuberville (R-AL), and J.D. Vance (R-OH).

Article 5 provides for "collective defense" among NATO member nations, stating that "an armed attack against one or more of them in Europe or North America shall be considered an attack against them all..." In recent months, Article 5 has been cited as something of a trigger for World War III given Russia's aggression against Ukraine. The talking point normally goes like this: If Russia, God forbid, mistakenly or purposely attacks a NATO country in Europe, then Article 5 means that NATO and its members would be at war with Russia. But that's not necessarily the case. 

As Senator Paul noted on the Senate floor Wednesday before the vote, his amendment is "consistent with the NATO treaty" while also reasserting that the treaty does not supersede the constitutional requirement for Congress to make the decision of whether or not to go to war. "Article 5 of the treaty commits allies to respond to an attack but allows each ally to determine whether to engage in military hostilities," Paul reminded. "Article 11 of the NATO treaty states its provisions are to be carried out by each country's constitutional process," he continued. "We cannot delegate our responsibility to NATO, nor are we expected to."

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That is, NATO requires a response from its members in the event Article 5 is invoked, but that response is not necessarily — and definitely not automatically — war. If it is deemed that war is necessary, any such decision is to be made in accordance with member countries' constitutions. In the case of the United States, that means Congress must approve such action. 

Senator Mike Lee shared his "surprise" with the outcome of the vote on Sen. Paul's amendment:

"I think it should be an easy vote to affirm the Constitution," Sen. Paul said on Wednesday. "To vote against affirming the Constitution actually places doubt in the Constitution," he explained. "The power to declare war is the most important power and the most important vote that any legislator will ever entertain...We do need to reaffirm the power and the necessity of declaring war because we are ignoring it by continuing to be involved in military activity and war around the globe without ever having voting on it as we are mandated by the Constitution," Paul reminded. 

Senator Lee expounded on his earlier thoughts in a Twitter thread that advised those who believe Article 5 supersedes the U.S. Constitution to "please read it" and said "for the love of all that is sacred and holy, please tell your senators how you feel about their vote today."