President Joe Biden has ratcheted up America’s quiet little war in Somalia.

President Donald Trump directed a significant escalation of the long-running U.S. war in the  East African nation. In 2017, he loosened the rules of engagement for the drone war in Somalia. With the shackles removed, the U.S. military executed a record number of bombing missions. In 2019, the U.S. military conducted 63 airstrikes in Somalia, the most in any single year. It followed up with 52 strikes in 2020. That compares to 42 U.S. airstrikes in that country from 2007 to 2017.

Bombing dropped significantly after Biden took office and placed limits on drone strikes outside of active war zones. There were only five airstrikes reported in 2021.

Trump pulled out most of the 650 to 800 U.S. soldiers who were on the ground in Somalia late in his term. (He was responsible for sending most of those troops into the country to begin with.) Now, President Biden plans to send them back.

“President Biden has approved a request from the Secretary of Defense to reestablish a persistent U.S. military presence in Somalia to enable a more effective fight against al-Shabaab,” according to a senior administration official.

In fact, Trump didn’t actually end “boots on the ground” in Somalia. U.S. soldiers were simply redeployed to neighboring countries and apparently moved in and out of Somalia on “an episodic basis,” according to the same official.

Biden also gave the Pentagon the green light to target about a dozen al-Shabaab leaders. That means we will likely see a ramp-up in drone strikes.

The war in Somalia flies under most people’s radar. There is little mainstream reporting, And with no American casualties, people simply don’t care. Nevertheless, the U.S. war in Somalia exacts a human toll. According to an investigation by Amnesty International, 21 civilians were killed in just nine airstrikes in 2020 and 11 others were injured. According to Airwars and reported by Time, evidence suggests that as many as 15 Somali civilians were killed by U.S. strikes in 2020 alone.

There is absolutely no constitutional authority for President Biden to send troops into Somalia or drop bombs on Somalia. Nor did Trump have any authority to do the same. Congress has not declared war on that country, and the president’s role as commander-in-chief does not authorize him to initiate offensive military action.

Constitutionally, Congress must “declare war” before the president can engage in offensive military action. As George Washington wrote in a letter to William Moultrie, “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure.”

Instead of a declaration of war, Biden and Trump, along with Bush and Obama before them, rely on the authorization to use military force (AUMF) passed by Congress in the wake of 9/11 to justify military action across the globe, but this stretches the president’s constitutional authority far beyond the breaking point.

In practice, these resolutions authorize the president to decide if and when he wants to take military action. The AUMF passed after 9/11 to authorize the invasion of Afghanistan remains in effect today. Bush, Obama, Trump, and now Biden have used it to justify their independent decisions to take military action across the globe, including in Somalia.

But such AUMFs simply don’t pass constitutional muster.

No constitutional provision authorizes Congress to transfer its delegated powers to another party, including the president. In fact, doing so violates basic legal rules of construction. In contract law, when a principal (the people) delegates power to an agent (the federal government), the agent cannot transfer its delegated power to another party without specific direction within the contract. No such authorization exists in the Constitution. So, Congress can’t legally give the president a blank slate to make decisions about war at his own discretion. Congress must make that call and make it specifically before the initiation of military action.

Congress has never authorized military action in Somalia, as required by the Constitution. It is therefore an illegal war.

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