So is what Obama did Constitutional?

[vaberella]

Are there any constitutional lawyers on this?

Now I read the article produced by Professor Will Huhn and the calls by the Liberal Dems that this may not be Constitutional. If that is the case, then why would a constitutional lawyer professor turned President would act in a way that would get him impeached? I don't think he would but I don't know if others out there who might know.

Now Huhn's article is here (and I've posted some key points):

In the President's favor is that he did brief Congressional leaders about this matter, thus substantially complying with the disclosure provisions of the WPA. (See Section 1543 of the Act requiring the President to issue a "report, in writing" to Congress within 48 hours of the introduction of U.S. military forces into hostilities.) In addition, at least one portion of the War Powers Act – the provision in Section 1544 authorizing Congress to order the President to remove troops by adopting a "concurrent resolution" is almost certain unconstitutional under the principles set forth in the case of INS v. Chadha (1983).

There is a further consideration. The War Powers Act is probably not enforceable in the courts. The dispute over the constitutionality of the President's action is probably a political question, not a legal question. No court is going to order the withdrawal of the armed forces from a theater of war nor will the F.B.I. arrest the President for conducting an illegal war. Instead, the War Powers Act is on the books to justify impeachment. Violation of the War Powers Act would certainly constitute a "high crime or misdemeanor" justifying removal from office.

In short, the War Powers Act is not so much a law as it is a declaration of poltical power – a warning to Presidents not to start unpopular wars. It was enacted so that Congress could more easily justify removing a President from office if the President should commit acts of war that are not supported by the American people. In this case the majority of Congress and the American people seem to support the military action in Libya. There has been no serious attempt to oppose our involvement. If Congress or the people should turn against the President on this issue, however, the President would proceed at his own risk.
http://www.ohioverticals.com/blogs/akron_law_cafe/2011/03/the-constitutionality-of-military-action-against-libya

***Keep in mind this entire topic is interesting.

However a poster posed an interesting question and this would suggest that the decision Obama took was constitutional:

Apollo March 20, 2011 at 10:11 pm
Professor Huhn, thank you for the well written examination of this issue, but would you please speak on the issue as it relates to the following two sections of §1547 of the W.P.A.

(b) Joint headquarters operations of high-level military commands
Nothing in this chapter shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to November 7, 1973, and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

-and-

(d) Constitutional authorities or existing treaties unaffected; construction against grant of Presidential authority respecting use of United States Armed Forces
Nothing in this chapter—
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or
(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this chapter.

I would interpret these clauses as meaning that further congressional authorization is not required in circumstances invoked by U.N. Security Council resolutions. If you disagree with that interpretation, then I would certainly welcome your explanation of why, and how you would interpret those provisions.

Thank you in advance.

So what is it....? I'll assume it's constitutional since I doubt the President would do anything unconstitutional---especially when it's something that has been considered "an act of war."

[tavalon]

1. Not a safe assumption

I've been surprised to see him embrace the unitary executive with it's inherent constitutional warping and shredding.

[vaberella]

2. Fine. So is what he did constitutional or not? n/t

[tavalon]

4. I have no idea,

I just stated that he has previously bent the Constitution to the unitary executive model, albeit, he's just copying Bush. So, saying that you assume that a Constitutional scholar wouldn't do that was what I commented on.

I've pretty much been on Japan and missed much of what just happened. So, I really have no informed opinion on this specific topic. I do have an informed opinion on what President Obama has continued to do to the Constitution. Hint - it isn't hope and it isn't change, at least not good change.

[mgcgulfcoast]

3. unconstitutional.

why are we doing this? it seems we are killing people who hate us to help people who hate us. i saw on cnn al queda is part of the opposition to gaddafi.

[midnight]

109. Hmmm.. I have a problem with helping al queda.

[Hosnon]

20. There's nothing nefarious about a unitary executive. It's established

by the Constitution: the entirety of the executive power of this country is held by one person, the President.

[tavalon]

22. Well, you are somewhat right and you are somewhat wrong

It depends on the scope and strength. The founding fathers created 3 co-equal branches of government as a check and balance against dictatorship. Bush/Cheney went quite a way toward establishing just such a lopsided dictatorial executive branch. Obama has neither rolled that back nor avoided taking just a smidge more.

The thing that personally galls me is at least the last administration was upfront about it. This administration isn't being.

[Hosnon]

23. That would be a "unitary federal government theory".

The executive power has always solely been vested President.

The slight difference in the vesting clause in Articles I and II supports the theory.

ETA: But I do get your point about the executive trying to muscle Congress out of areas it is constitutionally permitted or directed to be involved in.

[jaxx]

5. Constitutional

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=439&topic_id=700460&mesg_id=700460

[PurityOfEssence]

29. No it isn't. Reid v. Covert (USSC, 1957) ruled that the Constitution supercedes Treaties

If there's a conflict between a treaty and the Constitution wins.

http://en.wikipedia.org/wiki/Reid_v._Covert

This is akin to the Supremacy Clause, so as Federal Law trumps State Law when they are different, Federal Law trumps International Treaties.

There is also an extreme misreading of the reference to the United Nations in the Original Post, which I point out below. The Constitution wins, so regardless of what the United Nations requests invites or allows its members to do, at least this country has to comply with its domestic laws.

Please respond, if you would be so kind.

Thanks.

[JackintheGreen]

6. Isn't he acting as a signatory to the UN?

I might be wrong. I'll be honest, I'm trying to finish my dissertation, so I haven't read on this anything like voraciously. But this is a UN action sanctioned (at least sort of) by the Arab League and requested by the rebels. This isn't an example of US aggression (yet), though I can see it going this way. What am I missing?

[vaberella]

9. You're correct.

However you should read posts no.# 5 and 7. They are also help for the nuance of the situation.

[JackintheGreen]

11. Thanks for the heads up. n/t

[bhikkhu]

17. nevermind

- wasn't very funny anyway

[paulk]

19. that wouldn't trump our constitution

not saying if it's a violation or not, but just because the UN says it's ok doesn't make it ok according to our constitution...

[stevenleser]

26. The treaty clause of the Constitution specifically allows congress and the President to

allow a treaty to compel the use of each others powers.

[PurityOfEssence]

31. No it does not.

Where does it say this? The "Treaty Clause" is Article 2, section 2, which reads:

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

Where does it specifically say he can pick and choose whose laws to obey? Besides all that, as I state elsewhere in this thread, the Constitution supersedes treaties, as clearly ruled by the Supreme Court in Reid v. Covert.

Do you have information I don't? Thanks.

[stevenleser]

41. Yes it does. Read Missouri v Holland

http://en.wikipedia.org/wiki/Missouri_v._Holland

Missouri v. Holland provides that not only can a treaty encompass the powers of both the Presidency and Congress, they can encompass the powers of the states as well.

This is what you need to do, OK? Step back for a moment and think about what a treaty is.

A treaty is an instrument that compels two or more countries to do or not do something. In order for that to work, it has to carry the power of the rule of law within a country. Otherwise, treaties like things over fishing rights, or arms production have no weight. If I own a company that has fishing boats or produces weapons, if a treaty does not constitute law, I am going to ignore it and continue to make more money.

If a duly ratified treaty does not have the ability to encompass the powers of congress and the president, it makes no sense to have a treaty in the first place. They would not be worth the paper on which they are written.

In any case, the supreme court agrees with me. Treaties cannot go beyond the constitutional powers of the branches and states, but they can encompass them.

[PurityOfEssence]

47. No it does not. You are completely misreading this.

Thanks for the education, though, but it says nothing like what you say it does.

It is talking about States rights, not Federal ones, so first off, it has nothing whatsoever to do with our issue at hand.

I didn't have to do any deep research to see that your point is completely invalid; I merely looked at the Wikipedial entry you cited.

Here's part of Holmes' decision:

"The treaty in question does not contravene any prohibitory words to be found in the Constitution."

Here's part of the summary:

"Treaties made by the federal government are supreme over any state concerns about such treaties having abrogated any states' rights arising under the Tenth Amendment."

We are not talking about a State's conflict with a part of a Treaty that's not specifically enumerated in the Constitution, we are not talking about State's rights at all. The argument they brought forth in your case concerned the 10th Amendment, which reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The whole footing for Missouri v. Holland is that migratory birds weren't covered in the Constitution. WAR IS COVERED IN THE CONSTITUTION. There's no wiggle room for a State to make a claim to elaborate on something because it wasn't dealt with in the Constitution.

Holmes makes this quite obvious in his statement, the crux of which is that the dispute at hand is not in discord with anything in the Constitution. This clearly shows that if it was at odds with something in the Constitution, there would be a problem.

Reid v. Covert very clearly states that "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty", moreover, this ruling was from 1957, whereas the one you cite is from 1920. The rule you cite has NOTHING to do with a Treaty needing to comply with the Constitution, it pertains to the State level, and ONLY when the Constitution is mute on some point, which would then allow the State to define the rights under its 10th Amendment prerogative.

This isn't even close to siding with you; it, in fact, literally sustains the contention I'm making. Holmes' whole justification is that it doesn't contradict the Constitution. The War Powers Act is a delineation of how the Constitution is to be interpreted, and is the standing law; it very clearly states that the President needs to CONSULT prior to launching an attack if we haven't been attacked.

If Reagan, George Herbert Walker Bush and George Walker can consult with Congress, and even Ford (when the Mayaguez was attacked in international waters) can consult within 15 hours OF HAVING BEEN ATTACKED, then I think Mr. Obama can have the same respect for our law, too.

[stevenleser]

49. Every reference says I am right. Show me a link that supports you. You cannot find one. n/t

[PurityOfEssence]

51. You can say that all day long, but it's not true. USSC says that the Constitution trumps Treaties

Missouri v. Holland is a STATE LAW issue, and only in issues invoking the 10th Amendment where the Constitution is unclear on something. The Constitution is clear on this, and it's further delineated by the War Powers Act.

"Every Reference" says you're right? Show one. What you showed shows Oliver Wendell Holmes specifically stating otherwise.

You have gone on record bemoaning the lack of disciplined, careful and reasoned discourse, yet this entry here is just a "yah-ha, did too" kind of taunt. You have not presented any citations other than the one in Wikipedia, which has no bearing on FEDERAL LAW being at odds with a Treaty.

I've shown the groundlessness of this, so please present the many, many references to which you allude.

[stevenleser]

57. You are creating a straw man. I am not arguing that a treaty trumps the Constitution.

I am arguing what every bit of case law says is correct. A treaty can be as powerful as the combined powers of Congress, the President and the states and it is for that reason that it needs both the approval of the President and a supermajority of the senate.

It has to have the power of the Presidency and the congress and the states because otherwise a treaty would be unenforceable.

Again, if a treaty attempted to do anything that was outside of the three bodies I mentioned, for instance, to say only whites could fish in the St. Lawrence Seaway, THAT would be an UnConstitutional treaty and then your argument comes in.

[stevenleser]

61. Here is more SCOTUS and caselaw for you

http://law.onecle.com/constitution/article-2/18-treaties-as-law-of-the-land.html

Treaties as Law of the Land
Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271
----------------------------------------
Another key piece of info at this link:

"“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

[PurityOfEssence]

75. Two of these points confirm my position, as explained in post #68, the other one is irrelevant

1) The treaty has to be carried out by the respective countries, thus by their laws.

2) Again, the legislature must execute the provisions of the Treaty, and if these provisions are in conflict with the Constitution, the Constitution takes precedent.

3) This has nothing to do with the right or mechanism of initiating conflict; it pertains to how civilian or military officials are to behave after the endeavor has been initiated.

It seems that if any reference to a treaty is found with an attendant "no" or "not" somewhere in the body, then it's waved as the bloody shirt of righteousness. Post #68 goes into more depth about this, but the first two citations here very much confirm my contention, and the last one has nothing to do with the right to start a war, merely the comportment of individual during its course.

[stevenleser]

79. That is not what it says. You are taking pieces out of context. n/t

[PurityOfEssence]

84. How so, O eloquent N/T Ranger?

You've ridiculed others for not making specific, measured and nuanced explanations for their points, you've specifically requested me to reply, and you repeatedly N/T me.

First off, it's insulting: somehow this care-filled analysis doesn't warrant anything more than the cyber equivalent of a backhanding. After that, it's silly, because you've dredged up "proof" that shoots your arguments down in flames for me, and you've done it repeatedly.

How did I deceptively or mistakenly misrepresent these points by taking things out of context?

[PurityOfEssence]

30. He swore an oath to preserve, protect and defend the Constitution, not the UN Charter

We take precedence. We are his employer. He works for us.

Please see my posts above and below. The Supreme Court is quite clear that the Constitution supersedes treaties.

[JackintheGreen]

36. That's an extremely isolationist stance

I'm not suggesting your interpretation of the Constitution is incorrect, neither the SCOTUS position in Reid, but it seems to me that it is possible to keep national and international matters more separate. That is, he can act as a member of the "world community" not merely as POTUS (and as I write that I have Phil Ochs lyrics going through my head).

Nor am I suggesting that what he did was right and proper. But how I imagine it *should* have gone down is something like the following: each signatory tasks a specified number of troops to the UN security forces, correct? The blue helmets. As far as I am concerned, these troops act under the aegis of the UN for as long as they are tasked to it. They are an international peace-keeping force rather than an agglomeration of French soldiers, Dutch soldiers, Ghanaian soldiers, US soldiers, etc. It is my understanding (an understanding always accepting of correction) that this kind of work is what this force was meant to do. I have no problem with this kind of force acting in the interests of the world community if said community can agree what its interests are. Which is what the UN is supposed to do. However, it is also my understanding that the blue helmets do not have ASMs or SSMs. These come instead from each contributing force. Or, as of yesterday, some 200 from the US and like 3 from everybody else. It is this to me that is unacceptable.

Assuming of course that action in Libya is justified, which I am not saying. Only that if such action is justified somewhere then...

[stevenleser]

42. Dont worry, they are wrong. See my #26 and #41

[JackintheGreen]

45. Yay, reason! n/t

[PurityOfEssence]

53. This poster is completely incorrect, and I request you to read my rebuttals

This is not reasoning, this is precisely what that poster decries: gainsaying, sloganeering and shout-downs.

Missouri v. Holland has nothing to do with Constitutional differences with Treaties; the USSC is very clear that the Constitution supersedes Treaties where they conflict. The case cited here pertains to instances where a State Law conflicts with a Treaty and the Constitution has no mention of the particular issue.

The UN Participation act REQUIRES CONGRESS TO AUTHORIZE MILITARY PERSONNEL when the UN requests or authorizes them. The War Powers Act only permits unauthorized military personnel for HEADQUARTERS and HIGH COMMAND participation; combat forces necessitate adherence to the War Powers Act, which requires either a Declaration or Authorization by Congress or response to being attacked, and in all cases, consultation is required.

[stevenleser]

60. You are completely incorrect. You are not even close to being correct. n/t

[PurityOfEssence]

62. I show how the Constitution supersedes Treaties, you show how even a State can supersede a Treaty

Missouri v. Holland uses the tenth amendment to effectively act as proxy for Constitutional issues that are not clearly delineated, as it has the right to do, but the net effect is that this allows an even lesser domestic law--one from a lowly state, mind you--to supersede a Treaty.

Now you are reduced to No it doesn't chanting with N/T. N/T stands for No Truth or Not Thinking or Nasty Tirade.

By your own request, you want reasoned discourse, and you resort to shout-downs and blatant misrepresentation and selective omissions.

The Supreme Court is clear on this, as is Congress. It's not even close.

[stevenleser]

64. Once again you create the strawman. I never said that a treaty superceded the Constitution

Just because you wish something to be so, doesnt make it so. Treaties have a defined role within the Constitution and it is that role that I am repeatedly trying to explain to you.

http://law.onecle.com/constitution/article-2/18-treaties-as-law-of-the-land.html

Treaties as Law of the Land
Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271
----------------------------------------
Another key piece of info at this link:


"“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

[PurityOfEssence]

65. Then what are you saying? The Constitution supersedes Treaties, and Authorization is required.

To recap:

1) The War Powers Act and the UN Participation Act say that Congress must Authorize this. If it had been an attack on us, Congress would need only be consulted, but this is not the case. Obama hasn't even consulted Congress yet, so he'd be in violation even if we HAD been attacked.

2) Regardless what the UN Security Council asks for, suggests, pleads for or demands, the Constitution takes precedence and supersedes any Treaty obligation that is in violation of the Constitution.

What ARE you saying, so I don't mis-step and put words in your mouth.

It SEEMS that you are questioning BOTH issues, the requirement of Authorization (not to mention consultation) and the irrelevance of the UN's request when at odds with the Constitution. Please modify this so we can continue the discussion honorably. My contentions should be clear after all this, and I am consistently pointing out how you and others are pulling out documents that don't sustain your points at all.

It was claimed that the War Powers Act's allowance of not needing consultation to have military officers at a HEADQUARTERS or HIGH LEVEL position, but this simply serves to underline that it IS needed for COMBAT TROOPS or LOW LEVEL positions.

None of these contentions of mine seem to be refuted. Can you simply address points one and two above; apparently I'm a slobbering dolt to have not seen the indisputable refutations you claim to have so obviously offered that nothing more is needed as "proof" than your personal N/T. Please explain; the two points are very clearly stated in this response.

[stevenleser]

67. I have been very clear in what I have said. You apparently are not reading what I write

The SCOTUS has repeatedly said that the Constitution provides for treaties to be able to wrap up all of the powers of the Executive branch, the Legislative branch and the powers delegated to the states. It is because treaties have this kind of power that they require the approval of the President AND a supermajority of the upper house of congress.

For a treaty to be Unconstitutional, it would have to exceed the power of all three of the President, Congress and the states.

This is not a treaty "superceding" the constitution. It is a treaty fulfilling its role as envisioned and provided for by the Constitution.

Once again:

http://law.onecle.com/constitution/article-2/18-treatie...

Treaties as Law of the Land
Treaty commitments of the United States are of two kinds. In the language of Chief Justice Marshall in 1829: “A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.”270 To the same effect, but more accurate, is Justice Miller’s language for the Court a half century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it.... But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.”271
----------------------------------------
Another key piece of info at this link:

"“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered ... .”

[PurityOfEssence]

68. No, the Supreme Court clearly states that the Constitution supersedes Treaties

"this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,"

What you cite does not nullify this.

In fact, what you cite SUPPORTS MY CONTENTION.

Read this from your first paragraph "...but is carried into execution by the sovereign power of the respective parties to the instrument.” That means that the Treaty is an intersection between the two nations' laws, somewhat like a venn diagram. A Treaty only has mutuality to it, it is the responsibility and purview of the nations to enact it.

Also from that paragraph: "“A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished." War powers in our government are conferred by Legislative act (unless we're attacked, in which case the President may act, but MUST consult.)

From the second paragraph: "...But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract." Once again: the legislature, and it is clear that the legislature, NOT the executive authorizes war.

From the third and last paragraph: "“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials..." This refers to the actions of INDIVIDUALS, including Military, Naval or Administrative OFFICIALS, and as such, refers to the actions of subordinates engaged in activity authorized by the Treaty in question. It has NOTHING WHATSOEVER to do with INITIATING action that would run contrary to the war powers of the legislature or even of the executive.

None of these clips justify ANYTHING. Treaties are the law of the land, but if they usurp powers of the legislature or run contrary to the Constitution, the Constitution wins. If the Constitution is unclear about something, a State can trump a Treaty by invoking Missouri v. Holland, and thanks for providing me this additional proof. Treaties do not trump the Constitution; the Constitution trumps Treaties where there are statutory conflicts.

Once again, you present "proof" which only serves to sustain my arguments. The clear, obvious pronouncements are in the War Powers Act, the UN Participation Act and Reid v. Covert: The President MUST get authorization to deploy military forces in harm's way UNLESS we're attacked, and even then, he/she MUST consult, and the Constitution is the default when there's disagreement. It's very clear. It's really fully intended; we did NOT want to cede our national prerogative to a superior entity, and we do not recognize the UN as a superior entity.

Please respond.

[stevenleser]

69. Again with the Strawman? I never said what you are attributing to me.

I have never said that treaties supercede the Constitution. Is it that hard to understand what I am writing?

Treaties are set up in article 2 of the Constitution. It means that the Constitution is the source of the power of treaties. That means that treaties cannot supercede the Constitution.

Treaties were set up to be able to encompass the powers of the congress, the president and the states. To do otherwise would make no sense. Treaties have to have the force of law and of those bodies listed in order to mean anything. None of that means that treaties supercede the Constitution. None of it.

Please respond.

[PurityOfEssence]

72. Yes, that's what you're saying in post #26

You say:

"The treaty clause of the Constitution specifically allows congress and the President to allow a treaty to compel the use of each others powers."

By saying this, you're saying that a treaty can force the Congress to acquiesce to the President's wishes to take action brought forth by a treaty. This would be a violation of the separation of powers, and you are, in effect, saying that a treaty would trump the Constitution. It seems VERY obvious that this is your intent here. If not, what did you mean?

You seem to be saying that a treaty can allow one branch of government to dominate another or usurp the others' Constitutionally granted powers.

Please respond, and clarify what you DO mean if you don't mean that a treaty can thus supersede the Constitution itself. A treaty is to be obeyed equally by all branches of the government, and if it triggers something that brings into play the checks and balances, those mechanisms are to be exercised.

What you say is tantamount to saying that a Treaty has supreme authority in areas of conflict, which is specifically not true.

Your move.

[stevenleser]

78. What part of "The treaty clause of the Constitution" do you not get?

If something is specified in the Constitution, and you do what is specified, how is that overriding the Constitution?

How is it that you are not getting this?

[PurityOfEssence]

85. The part that's not there where you think that something in a treaty trumps the Constitution.

Here is THE ENTIRETY OF THE TREATY CLAUSE:

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;"

Where does this say that, if a treaty ASKS or ALLOWS him to do something, this permits him to violate the Constitution and do as he damned well pleases and wage war without Congressional Authorization?

The United States Supreme Court is very clear that the Constitution supersedes Treaties in instances of disagreement.

I await your reply

[paulk]

70. to quote George Bernard Shaw

"I learned long ago, never to wrestle with a pig. You get dirty, and besides, the pig likes it."

[stevenleser]

77. Agreed, obviously some folks just cannot engage in a debate without resorting to logical fallacies

[paulk]

80. actually,

I think you got your ass handed to you.

[stevenleser]

82. Then your sense of logic is as bad as the person I am arguing with.

Congrats on your championing of the use of Logical Fallacies. I guess we know what your opinion is worth.

[paulk]

94. sez you!

:hi:

[pscot]

95. I saw it the same way

You got pwned.

[LooseWilly]

124. Yup, your argument is pretty much non-sensical repetitious faith-mysticism.

I feel like I'm watching someone wave a rubber chicken in someone else's general direction in the expectation that some sort of voodoo powers will ensue. :+

The closest I can come to making sense of your argument about treaties "encompassing all three branches" would be a guess that you are trying to say that, in approving the UN treaty, whenever it was that the Congress did so, the Congress essentially was voting to approve military action (war) solely upon the "say-so" of the UN in perpetuity. (Some sort of UN treaty could call for military action and so, by voting for UN Congress is voting for all UN military action in advance.)

Needless to say, that would be an absurd interpretation of the Constitution's article regarding treaties... but sadly it is the most sensical interpretation I can make of what you are saying.

[Bodhi BloodWave]

48. the supermacy clause makes the U.N charter treaty a part of the supreme law of the land in the US

and since Obama is abiding by the war powers act AND is acting in accordance with a U.N resolution/declaration then what is doing is constitutional.

Also he does not work *for* you, you elected him to do what he thinks is correct in regards to the situations that might emerge while he is president(if you approve of what he has done then vote for him again, if you disapprove, then vote for somebody else which is what elections are for.)

[PurityOfEssence]

86. The War Powers Act REQUIRES a Declaration of War or Authorization by Congress unless we're attacked

So he is NOT in accord with this. It's not a question of what I like or not, it's a question of obeying the laws of the land. He works for us. He swore an oath to preserve, protect and defend the Constitution.

He's not even close, since he's ALSO required to CONSULT with Congress, not send them a letter with his pronouncement of how he sees fit to proceed.

Both Bushes (although not in all cases for Poppy) sought and got Congressional Approval. Reagan did (somewhat) for Lebanon. Clinton negotiated (literally fought) with Congress to get an extension of the timetable for the Somalia mess he'd inherited (which Bush entered into with Congress' blessing) and had to seriously revise his objectives to comply with Congress' willingness. These men all felt that the War Powers Act overly clips their wings, but they mostly complied.

Obama is exposing himself and all non-reactionaries to serious trouble with this high-handed, and yes literally UNCONSTITUTIONAL folly.

[Historic NY]

7. There is historical precedent, acting in concert with the UN

from Korea forward that covers this. We also don't have boots on the ground which would require approval.

[vaberella]

8. Do you have a link for that precedent? Oh, the boots on the ground...

I forgot about how important that is. Thanks again. So then this would not be defined as an "act of war" in the strictest sense?

[ProSense]

10. Here

The first Gulf war was launched in August 1990 and the AUMF approved January 1991.

The Persian Gulf War (August 2, 1990 – February 28, 1991), commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from thirty-four nations led by the United States, against Iraq.

more

Anyone suggesting this is unconstitutional is out of his/her friggin mind. 1) Because this was a U.N. action and not a declaration of war. 2) Even if they want to call it war, this does not violate the War Powers Act.

[vaberella]

12. Understood...

Kucinich is out of his ever loving mind.

[TheKentuckian]

13. My interpretation would be no as Congress had its oversight at ratification.

Some are interpreting this in such a way that many treaties despite requiring a super majority for ratification are essentially worthless. I'll use a mutual defense pact like our NATO agreement as an example to illustrate my thinking.

Under the terms of NATO an attack against one member is considered an attack on the entire pact and as such we have the obligation to support our allies defense. In such a situation, there is no further responsibility to gain permission from Congress to aid France (as an example) because Congress has already accepted the terms.
This is why treaty ratification has such a high threshold, because it becomes the law of the land. Such terms do not supersede the Constitution but rather are accepted under it.

In effect, the UN Charter is no different than the NATO pact. It is a legally ratified part of our law.

I don't get how the UN can authorize an action and taking part of the action under the UN flag can be unconstitutional nor how all kinds of mutual defense pacts can actually ratified and not struck down the courts and the accusation of a Constitutional violation stand up.

I will say that Congress would still hold the purse and could still defund our portion of the actions.

I just don't see how treaties could be in effect but Congress must again be consulted to act on the ratified agreement. The logic seems flawed and makes many agreements null if the position is accurate.
Not once have I heard from any sane folks that our participation in NATO violates the Constitution and participating in NATO means potential use of military force at any time and I'd imagine couldn't logically even be limited to less than boots on the ground because aiding an ally's defense could easily dictate boots on the ground.

[Hosnon]

24. Congress doesn't weigh in on treaties, the Senate does.

Claiming that war can be declared by 2/3 of the Senate is amending the constitution improperly. Congress, not just the Senate, is given the authority to declare war.

Note: This post is in response to your general comments, not to any particular military engagement.

[PurityOfEssence]

32. The Senate is part of The Congress.

The Senate ratifies Treaties, but it takes the full Congress (Senate and House) to declare war or authorize military action.

Per the War Powers Act, it would seem that the President could act quickly in a pinch when attacked, but would have to consult with Congress at first opportunity. In an instance where we weren't attacked, there's no way he could go to war without an Authorization or Declaration.

[Hosnon]

37. But they are not the same.

If the Constitution requires the authorization of Congress, that provision is not satisfied by the authorization of 2/3 of the Senate.

[PurityOfEssence]

74. That is correct, in which case he hasn't gotten the required Authorization

It seems INCREDIBLY obvious to me, and also quite obvious why all the Presidents since 1973 dislike the War Powers Act. Still, they've generally respected it and complied or at least made half-measures of compliance with it when inescapable.

[TheKentuckian]

33. Thats fair and didn't enter my thoughts but we aren't discussing these sort of treaties.

Are you saying that mutual defense agreements like NATO are unconstitutional, and if so why is it only now a subject of debate. These things aren't new.

[Hosnon]

38. If a treaty (such as the U.N. Charter or NATO) authorizes the use of military force

without the approval of Congress when such approval is constitutionally required, yes, that portion of the treaty is unconstitutional and without effect.

The President and 2/3 of the Senate cannot amend the Constitution.

[TheKentuckian]

54. So, our entire history of mutual defense pacts is unconstitutional?

Why haven't we been pressing to get out of NATO when the entire gist is mutual defense?

The Constitution was not amended, the treaty was ratified and as such adopted as the law of the land.

This entire doctrine is new. Never once have I heard anyone declaring that mutual defense pacts violate the Constitution or are in effect null and void because a future Congress may not authorize.

What is your interpretation of the actual point of these agreements?

[Hosnon]

56. The italicized portion of my post is the most relevant in response to yours.

I tend to fall on the side of the President having broad authority to make war, despite his inability to declare it. And when it comes to military engagements that are less than "war", I think that authority is perhaps without limit. So, no, the multitude of defense treaties we are a party to are not necessarily unconstitutional. But if one of those treaties is used as justification to "declare war" without Congress, then the treaty has exceeded its constitutional authority.

The War Clause will forever cause us this problem because the Supreme Court will most likely never interpret it (because the Court sees war as a political issue, not a legal issue).

[PurityOfEssence]

55. Thank you. This is very clear from the War Powers Act and the UN Participation Act

Thank you for sticking with it here.

This is a huge mistake, and the worst thing about a huge mistake is not admitting it and trying to right it. I don't want the President impeached, but it's not too much of a stretch to see the Republicans doing it if things drag on here, even though most of them are for this bit of imperial meddling; should things go wrong, they can rightfully claim that they should have been consulted, and had they been, they would have had the magic solution and brought more aggressive means to the problem.

People think like Republicans these days: all they have to do is repeat something enough and shout down those who don't fall in line, and that's reality. It's not.

[Hosnon]

59. I haven't really decided whether I think this is unconstitutional or not.

Currently leaning towards constitutional though.

[PurityOfEssence]

73. On what grounds?

The War Powers Act requires the President to get Congressional Authorization or a Declaration unless attacked. The Treaty with the UN does not supersede this. What is your reasoning?

[Hosnon]

76. I question the constitutionality of the War Powers Act.

As has every President and many legal scholars. It crosses a few lines a few times.

Short version: This is only unconstitutional if it is a conflict that meets the definition of "war" that had to have been "declared". If it is not a war or it is a war that we were, in essence, compelled to join (as if invaded), then it is constitutional. The U.N. Charter and the War Powers Act only minimally enter into the analysis, if at all (in my opinion).

[PurityOfEssence]

87. Nonetheless, it is a law on the books, and until repealed, needs to be obeyed

It's not an a-la-carte kind of Constitution, where one only obeys those things one likes or agrees with. Laws on the books are laws on the books.

As for what constitutes a "war", the Act itself defines what it considers its purview, and does so at the very beginning and in a very obvious, unambiguous way:

"PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations."

To be clear, they refer to THE INTRODUCTION OF UNITED STATES ARMED FORCES INTO HOSTILITIES, OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATE BY THE CIRCUMSTANCES, AND TO THE CONTINUED USE OF SUCH FORCES IN HOSTILITIES OR IN SUCH SITUATIONS."

Sorry to be such a bold-faced snot, but the law is really, really, really clear, and this DEFINITELY fits the definition: whether they're civilians or rebels or saviors of mankind or whatever else, THOSE ARE "HOSTILITIES" going on over there, and we mean to put our people into the fray.

It's the law. If its Constitutionality is in question, it's still the law.

How do your doubts of its Constitutionality have any bearing on the President's sworn duty to obey it?

[Hosnon]

88. Congress then has asserted its position on what it thinks constitutes a "war".

Which is fine and I think what the Founders wanted (i.e., each branch pulling and tugging regarding constitutionality). But I don't think Congress is the sole arbiter of the meaning of the Constitution, as I don't think the Supreme Court is (although it is the most equipped in most circumstances).

The Supreme Court will not wade into this one, because it has a policy of avoiding political questions. In other words, when it comes to defining "war", the Supreme Court has bowed out and left it to BOTH Congress and the President. And simply because Congress defines it as X (over the veto of the President at the time, and the objections of every President since), doesn't mean it is X.

I think the War Powers Act unconstitutionally restricts the constitutional military powers of the President. It's by its very nature a murky issue; and given the difference in the vesting clauses of Articles I and II, I tend to think the President's military power is very broad, and restricted only by not being able to "declare war" (a position supported by the minutes of the Constitutional Convention).

However, I fundamentally believe that Congress is the First among Equals; hence my uncertainty.

[PurityOfEssence]

92. I can understand the distaste, but the definition of "war" and involvment are clear

and the statute stands.

In all amity, your dislike of the statute doesn't negate the clarity of the definition of what is a war, what is allowed for deploying forces, what the permission necessary is and what the consultation beyond that requires. It is what it is and it is very well defined.

It's standing law. He HAS to obey it; it's the law of the land, and it's not quibbly shit like bugging opponents' campaigns or slipperiness under oath about sex, this is WAR. It's serious, and not only does the law need to be followed, the far greater need is to show the allegiance to the concept of the shared powers of the government and the respect for others in the making of deadly foreign policy.

Frankly, I don't understand your point. You don't like parts of it or the concept at all, but it's THE LAW, it well defines what is meant by situations and forces, and this obviously meets those criteria. At this point, the only contention I see that you could make is that laws are to be obeyed as one pleases, and I can't believe you'd contend that. That's Nixonspeak.

I don't need to wring concession out of you, but surely you see the point.

My principal frustration about this whole episode (not my discourse with you, the President's actions) is the high-handed flagrant disregard for settled law in an extremely important matter. This is WAR. Many, many people will die, be maimed, lose loved ones and providers, and it can only be done pursuant to the law, which also ties everyone to the responsibility, AS IT SHOULD.

Sigh.

[Hosnon]

93. Not if it is unconstitutional.

And asserting it is constitutional unless and until the Supreme Court invalidates it is unpersuasive because the Supreme Court will likely always decline to decide its constitutionality pursuant to its Political Question Doctrine, i.e., war is a political issue, not a legal issue. Therefore, the constitutionality of the War Powers Act is something to be decided by the other two branches: Congress and the President.

Now, clearly Congress thinks the War Powers Act is Constitutional because it passed it. But the bill was vetoed by the President and overridden to become law. And no President since has ever acknowledged the constitutionality of it. That is why every notice sent by the President states his actions are "consistent with" and not "pursuant to" the War Powers Act.

Fundamental to my point is that the Supreme Court is not the only entity that determines the constitutionality of legislation (Congress does it every time it passes a bill). I happen to lean on the side of the Executive on this one. The War Powers Act is a Congressional attempt to usurp power that was given to the President by the Constitution, and it is the President's duty to object.

[PurityOfEssence]

98. They may object all they please, but a standing law is a standing law

Whether the President thinks it's Constitutional or not is really of no matter. As you know, the Legislature drafts and passes laws; the Executive either concurs and the law is passed, or vetoes and sends it back. If the veto is overridden, it becomes the law nonetheless, and it is NO LESS A LAW THAN IF THE PRESIDENT AGREED.

By this logic, a law passed with overwhelming assent should be more vigorously enforced than a squeaker, and although the practice of enforcement often bears that out, it's not moral or ethical. We all shrieked with indignation to watch the Reagan Administration teach us just how easy regression is: simply don't enforce laws, particularly environmental ones.

A law is a law is a law, and even if the Presidents do their creepy little signing memos to somehow invalidate the will of the people, that law that's either signed or not is absolutely as legal as any other one. The idea that a President or all of the ones since 1973 don't feel it's valid doesn't mean a thing, they have a SWORN OATH to preserve, protect and defend the Constitution. Opting out is not just dereliction of duty, it's an attack on the concept of pluralism and not to be tolerated.

Like it or lump it, it's the law of the land, and just as important, valid and compulsory as any more popular law. This kind of thing is most disturbing.

There are checks and balances in our government, but it proceeds from agreement to agreement; each building block is as solid and fixed as the previous and the next one, and if they're in question, they're still in force until legislated or litigated away. Not thinking something is Constitutional is NOT a justification for disobeying it, and is, in fact, an assault upon the covenant of legality by which we bind ourselves together. The President accepts the supremacy of the Constitution, and laws like this are the purview of Congress to define what the Constitution is and is enforced to be.

There's really no wiggle room at all on this, and saying "nah, I don't just feel like it" is not the right of the President. It is, in fact, an attitude that all elected officials should consider deeply, deeply offensive and an assault on our communal family.

Sorry to be so heated, but this is important and I'm appalled by the flippant and casual attitude toward the necessary rigidity of our political system. It's precisely this scofflaw attitude that spurred me to bring this all up: our slippery slope of incremental encroachment makes whims of the powerful the currency of our society and politics, and that is the kind of evil this country was created to banish to the dust-bin of history forever.

It's a law, and it's every bit as much of a law as it would be if passed unanimously and not vetoed.

Richard Nixon didn't like it. He's the guy who said "if the President does it, that means it's not illegal."

We are not an Empire, a Dictatorship, or a skittish hobby; we are a nation of laws.

[Hosnon]

99. We'll probably just have to disagree here then.

I agree with you when the law in question is one that the Supreme Court may ultimately decide is constitutional or not. But when the law is one that the Supreme Court, by its own standards, will not, the waters are murkier.

What is the recourse if Congress passes a law (over the President's veto) that is horribly unconstitutional but falls within one of the Supreme Court's exceptions for review (e.g., the Political Question Doctrine)? You speak of checks and balances - in that case, the only check against an unconstitutional law would be the President's refusal to enforce it.

Congress cannot by statute alter the Constitution, including the constitutional military powers of the Executive (which are so broad that they include all military powers except the one reserved for Congress: declaring war). Much of the War Powers Act attempts to do just that. And if the President ignores Congress' interpretation of the Constitution and violates the War Powers Act, Congress can defund the military action or impeach the President.

I'm not trying to give the President any more power than he is given pursuant to the Constitution.

[PurityOfEssence]

110. Is the UN Participation Act of 1945 also Unconstitutional? It requires it, too.

First off, the War Powers Act is not an "alteration" of the Constitution; it is a statutory explanation and delineation of it, as called for by the "necessary and proper" clause. By Article 1, Section 8, as the last entry, Congress passes laws that specify how the powers granted in the Constitution are to be exercised. It's not some sneaky subversion or tweaking, it's elaboration and specificity of the usage of and meaning of the powers. It's the Constitution itself, once passed. Passed, whether the prima donnas of 1600 Pennsylvania Avenue like or not, it becomes every bit as real a law as any other.

Forget the War Powers Act for a minute. The UN Participation Act says, in Section 6, that the President is free to negotiate a special agreement with the Security Council regarding forces and their specific use, but that such an agreement MUST be authorized by Congress. If a call to arms under UN Charter Article 42 is made, he may commit forces with no further permission from Congress, but he HAS TO ALREADY HAVE CONGRESS' AUTHORIZATION FOR A SPECIFIC SPECIAL DEAL AHEAD OF TIME.

The UN Charter further clips its own wings by saying (Art. 43, Section 3) that "...They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes." The UN is reminding us that it knows that some leader's "deal" isn't valid until the folks back home legally agree.

(I'm getting quite an education here, but it seems that one of the problems with the League of Nations is that certain nations didn't want to cede authority to an outside entity.)

The UN Participation Act is the Act of Congress that permits and delineates our membership and activities in the United Nations. If you consider this act Unconstitutional, then the call to arms of this evocation of UN Article 42 means nothing, too.

[Hosnon]

112. To the extent that it attempts to alter the powers of the Presidency granted by the Constitution,

yes.

I've never heard your interpretation of the Necessary and Proper Clause. It's a supplemental power for the enumerated powers; it does not authorize Congress to effectively rewrite the Constitution via legislation (which is what you are claiming, e.g., "It's the Constitution itself, once passed."). Congress cannot amend the Constitution by itself. Anything passed pursuant to an enumerated power + the Necessary and Proper Clause is simply legislation.

[PurityOfEssence]

115. It's not an alteration; it's a clarification, which is expressly provided

I didn't make this interpretation of the "necessary and proper" clause up; in fact, it's the cited justification in the body of the War Powers Act. It's to make clear what the specifics of the powers granted in the Constitution are, and as such don't "amend" or change or alter anything; they simply clarify what is ill-defined. It's specifically put there by the framers to keep people from quibbling or to render the Constitution fragile. It is the interpretation, and can't--and in this case, doesn't--affect changes of any kind. To delineate something that is vague is not to change anything, it is to define it better.

That's the whole point that the framers added this clause, and that's how it's always been viewed. The law that states how the Constitution is to be interpreted is tantamount to the Constitution itself, as set forth by the "necessary and proper" clause. It's a slam dunk. It puts it in the hands of the legislature to interpret what needs interpretation.

This is no subversion or usurpation or change, it is the specific, built-in method by which the Constitution is IMPLEMENTED.

An amendment to the Constitution would be to change something in it or add something to it, not the act of clarifying what's already there.

They actually gave the President a little more than one could have given him/her by allowing retaliation immediately upon being attacked, instead of having to wait for permission.

Sorry, but this is not a change, and that's the long-standing interpretation of that clause.

[Hosnon]

116. No, that is not what the Necessary and Proper Clause does.

The Necessary and Proper Clause supplements the existing powers granted by the Constitution. It provides:

The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This clause is not the "law that states how the Constitution is to be interpreted". It was not intended to be that, and it has never been interpreted to be that.

The clause was included to broaden the powers of Congress beyond the explicit terms of the Constitution. In McCulloch v. Maryland, 17 U.S. 316 (1819), the Supreme Court stated "If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority."

Do you have any authority to support your interpretation of the Necessary and Proper Clause?

[PurityOfEssence]

120. Here are some links and definitions by entities who should pass muster:

Here are some opinions and their links:

The necessary and proper clause is a clause of the U.S. Constitution. This clause permits Congress to make laws that are deemed “necessary and proper” for the execution of its enumerated powers. The Supreme Court has broadly interpreted this clause for the purpose of granting Congress the implied power to enact any law that is reasonably designed to achieve an express constitutional power. Necessary and proper clause is also termed as basket clause, coefficient clause, elastic clause, sweeping clause.

http://definitions.uslegal.com/n/necessary-and-proper-clause/

(This seems very clear: it's a clause to justify Congress in specifying what the particular power is in real terms and how it may be legally granted and enforced. The second sentence further says that it's a power to put a law into force that is for the exercise of a power granted by the constitution. This would mean that the law itself is the de facto delivery system of a power that is constitutional. It's not for pulling something out of one's sleeve, but to define what is already there in legal statute terms. The "implied" power is restricted to actuating an express constitutional power, so it is not supplementing anything, but bringing to legal life that which has been specifically granted.)

n
A section of the United States Constitution that enables Congress to make the laws required for the exercise of its other powers established by the Constitution.

http://law.yourdictionary.com/necessary-and-proper-clause

--Doesn't this mean that it is designed to allow Congress the right to craft laws that are necessary to interpret the constitutional powers? These aren't "new" powers, these are powers that are established and granted by the Constitution. Isn't this tantamount to saying that the clause is to translate a stark "power" that's granted into the specifics of how it's to be exercised, and just what the agreed-upon definition of what that power is? (It's sort of like Shakespeare's line about a poet, and how he "gives airy nothing a local habitation and a name.)

These citations don't sound like SUPPLEMENTING the powers granted in the Constitution, these sound like IMPLEMENTING the powers that already exist, as the language of the clause itself reads. It gets muddied up with the concept of implied powers, too, but the raw text is a grant of the right to engineer the tools needed to implement the powers that are enumerated; it's a case of interpretation of that which is there, not creating something second-class, but the very powers themselves.

Once again, the clause itself:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It's to craft the statutes that are necessary (essential to wield the power) and proper (that actually represent the powers as we agree they are to be specified) of the foregoing (the ones we just listed, including the power to Declare War) powers, and they are for all branches or specific jobs within the operation.

Here's John Marshall:

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

That seems to be giving the clause the meaning that it is the actuator by which grey areas of things deemed constitutional are specified, doesn't it? That does not sound like the right to make additions that are of less-than-constitutional nature, but to create statutes that are the mechanism by which already granted constitutional powers may be exercised.

That's getting a bit far afield, though.

[Hosnon]

121. None of what you posted supports your position that the Necessary and Proper Clause

vest Congress with the power to interpret or define the Constitution.

"All" the clause does is expand the enumerated powers of the Constitution. For example, as Congress has the power to "regulate Commerce ... among the several States", it also has the power, pursuant to the Necessary and Proper Clause, to pass any legislation that is necessary and proper to regulate commerce among the several States.

To my knowledge, the Supreme Court has never interpreted that clause as giving Congress the power to "interpret" the Constitution. As I can't prove a negative, you need to come up with caselaw supporting your interpretation (however, you won't be able to).

[PurityOfEssence]

122. The Supreme Court quote you offer disproves your point.

Your point seems to be that the clause expands enumerated powers, but not interpret or define them.

The quote you offer, with my emphasis is:

"If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority."

Translated, that means: if the particular law in question is truly encompassed in an already existing, enumerated power, and is clearly attempting to facilitate that already granted constitutional power, and doesn't conflict with anything else in the Constitution, then it is deemed to be legal.

Once again, back to the clause itself:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

That's not adding or amending anything, that's doing what needs to be done to exercise CONSTITUTIONAL POWERS THAT ARE ALREADY ENUMERATED IN THIS DOCUMENT, WHICH IS CALLED THE CONSTITUTION.

Why must I dig up case law that specifically states what this clause is if you don't have to dig up anything that either says what it is or says that it's something different? I have presented definitions from legal dictionaries; is that not enough? Can you show another definition that says that it ISN'T a power of interpretation?

I'm not asking to prove a negative, here, I'm talking about showing something that defines the clause as being something directly contradictory to what I and other reasonable sources say it is.

It seems INCREDIBLY OBVIOUS that the clause is to allow interpretation of powers ALREADY GRANTED, which is pretty much the definition of "interpretation". One of the very best thing the Act does is to specify what it considers "War" to be.

One of the meanings of "expand" is to express something more fully or in greater detail (usually followed by on or upon ): to expand on a statement. That's not making a change or using it as a jump-off point to do something different, that's INTERPRETATION or elaboration in the sense of going into greater detail.

How does this invalidate using this clause to craft the War Powers Act? It is making a law to carry out a foregoing power?

[LooseWilly]

125. Uhmm... if the Supreme Court won't decide the issue, and the Congress overrode a veto on the matter

... that means that, according to the dynamics set up in the Constitution... the War Powers Act IS Constitutional.

Let's go through this...

Constitution states that there are 3 co-equal branches.

Judicial branch declines to be involved in this issue.

That leaves the issue to be settled between the Legislative and the Executive branches... and the Constitution explicitly set up a framework for exactly that sort of issue to be settled: The Constitution provided the Executive with a veto, and as a counter-check it provided the Legislature with the ability to override a veto with a super-duper 2/3 majority.

In this case, as you have described, the Executive utilized the Constitutionally provided power of the veto in his effort to settle the issue- and the Legislature then utilized the Constitutionally provided power of the veto-override to counter-settle the issue.

The Constitution does not provide the Executive with any other means to override a law imposed by Congress.

If the President doesn't like it... that's too bad. It's the law. (Unless we're going to go with a Nixonian "If the president does it, then it's not illegal" addendum to the "rule of law"?)

If you, or Obama, or future president Sunshine McHappy-thoughts for that matter, doesn't like it... the Supreme Court will have to be made to deal with it. Other than the Supreme Court, there is no Constitutional Power left to contravene the War Powers Act.

It's really pretty simple when you take it in small steps... ;)

[PurityOfEssence]

126. Small steps are important, and you're right; Obama broke the law

He didn't even really doff his hat to it, beyond saying that his letter was "consistent" with it. What greasy language.

By this logic, you can cheat on your taxes, lie, defraud the government, hide income, inflate expenses, and then pick up a pen and sign the bottom of the form; the act of signing that form is perfectly consistent with the law.

One of my little rules of thumb is: if Nixon hated it, it's worth looking at.

Reagan and Bush at least made deference to the damned thing for Grenada and Panama, even if they were in violation of it. Clinton really fucked us on this. In fact, looking at the financial regulation and some other issues, Clinton really fucked us on a lot of things.

Still, none of this makes it legal, and it's dangerous to let it stand.

Thanks for being one of the few who seems to be able to read; it's mind-boggling what gets said on these threads.

It's quite telling that Obama doesn't cite the War Powers Act as justification, but cites the UN Charter 6 times in his letter to Congress, and it's also very telling to see how completely in violation of our law governing participation in the United Nations. At least when people mis-read that, it's somewhat understandable due to it's confounding wording, but even a reasonable competent reader can see that the UN Participation Act allows the President to negotiate special agreements, but that they must be authorized by Congress. When the Article 42 call-up happens, he can deploy without consulting Congress, but ONLY pursuant to an agreement that Congress has ALREADY authorized. He simply can't make a deal by himself. UN Charter Article 43 further states that the special agreements are all subject to ratification by the members to comply with their constitutions.

It's crazy; he's REALLY REALLY in violation of both laws, and thus the Constitution itself.

Thanks for having a brain and taking the time to try to set people straight.

Ug, small steps good; big steps bad.

[CakeGrrl]

14. I suspect that former Constitutional Law professor Obama will

make more people look like fools in their rush to accuse him.

...and cue the inevitable batch of DU "Should Obama be impeached?" polls in 3...2...1...


:eyes:

[vaberella]

15. You're right. n/t

[kiranon]

104. Agree, n/t

[Old Troop]

16. It's hard to say. The constitution is actually rather vague.

It says in its enumeration of Congress' powers that it has the power: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
There is no definition of what constitutes war. Now actual practice, since the beginning of the country has allowed the President to conduct military and naval operations without a declaration of war as the Barbary Pirates expedition and pseudo war with France prove. That of course doesn't mean they got it right. :shrug:

[Jersey Devil]

18. Yes, because he is acting under the UN, for which we have a ratified treaty

Art 6, Section 2 of the Constitution, known as the "supremacy clause":

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"

The President is charged by the Constitution to enforce the law. Therefore, if he acts under the legal authority of a ratified treaty is is constitutional for him to enforce it.

[boppers]

27. "and all Treaties made"...

Out of curiosity, what if a treaty conflicts with the Constitution? What cases have come up with this problem?

[Jersey Devil]

35. To my knowledge the issue has been discussed by the court

but never actually ruled on. In mentioning the issue some decisions have pondered this issue and stated (but not ruled on that issue)that the constitution would trump any treaty and I would agree with that.

If you read the supremacy clause it mentions laws and treaties and since we all know laws have been ruled unconstitutional and not equal to the constitution I would suppose that treaties would be considered by the court the same way.

For instance, suppose congress ratified a treaty that limited free speech under certain circumstances? I would think the Supremes would toss the treaty in a heartbeat.

[Hosnon]

40. The Supreme Court ruled on the issue in Reid v. Covert, 354 U.S. 1 (1957). nt.

[vaberella]

44. The main clincher is though...this isn't "defined" as "war".

Until there are troops on the ground and it would seem only in that case is it required to have Congress give the okay. In this situation---notification is the only and necessary procedure.

[PurityOfEssence]

111. The War Powers Act defines "war" as introducing forces into "hostilities", and these are forces

Here's Section 2c, caps are mine:

"The constitutional powers of the President as Commander-in-Chief to INTRODUCE UNITED STATES ARMED FORCES INTO HOSTILITIES, OR INTO SITUATIONS WHERE IMMINENT INVOLVEMENT IN HOSTILITIES IS CLEARLY INDICATED BY THE CIRCUMSTANCES, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

It's a REALLY well done bit of legislation, it's the official interpretation of the Constitution on this subject (making it, in effect, the Constitution itself) and it's done by the power vested in the Congress by the "reasonable and proper" clause of the Constitution that charges the Congress with crafting laws to make the Constitution more specific. It's the law.

There's no wiggle room from the other side either: the UN Charter specifically says that any agreements made by a member nation have to stand the test of their own constitutional mechanisms back home, thus Article 42 only serves to give permission and invite (not demand) participation AS LONG AS THAT COUNTRY'S CONSTITUTION AGREES WITH THE TASK AT HAND as specified in Article 43.

The UN Participation Act of 1945, which is Congress' law delineating how we're to be a part of the United Nations, specifically says that the President may negotiate a "special agreement" with the Security Council, but that it is not able to be implemented unless Authorized by Congress. They could have worded it better, but its solid as it is: upon the Security Council calling to arms under Article 42, IF the President has authorization in place from Congress to act, he may do so with no further permission, but if not, he/she has to get it then before proceeding.

The War Powers Act clearly states that UNLESS ATTACKED, the President needs Congress to either Authorize action, or literally Declare War.

He blew it. If he doesn't address this and make amends (which would surely be a solution, albeit there would be some static from the worst of the worst) the reactionaries will skewer him with it in time. They're waiting for the adventure to drag on or hit some snags. They're waiting. Their letter was chilling in its omissions, and classic in its protocol.

[Hosnon]

113. Can you cite a source for the following claim:

"... it's the official interpretation of the Constitution on this subject (making it, in effect, the Constitution itself) and it's done by the power vested in the Congress by the "reasonable and proper" clause of the Constitution ..."

I've seen you post this several times.

[Hosnon]

39. The application of the Supremacy Clause is limited by the rest of the Constitution.

Example: 2/3 of the Senate and the President sign a treaty abolishing the House of Representatives.

That would not be the supreme law of the land. If a treaty conflicts with the Constitution, the Constitution wins.

[Hosnon]

21. I disagree with that interpretation.

I read those provisions as creating a distinction between high level international cooperation and military force. The leaders of our military do not need Congressional approval to communicate with their counterparts worldwide; however, the use of military force is not authorized.

[stevenleser]

25. Yes

Yes, see http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433x635282#635412

and http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433x635282#635461

[PurityOfEssence]

28. From these excerpts of the War Powers Act of 1973 (such an ironic date...) it is clearly illegal

There are only three instances where the President may engage in war: with a declaration from Congress, with an Authorization from Congress, or in cases where we're attacked. From this, the only way to do it without being attacked or having a Congressional Declaration is to get Authorization from Congress.

Regardless, it very clearly states that Congress is to be CONSULTED, not merely informed three days later.

8. b., cited above, which seems to say that no further authorization is needed for working with the United Nations is SPECIFICALLY talking about HEADQUARTERS work, and NOT COMBAT OPERATIONS.

There is literally nothing here that gives treaties pre-eminence, period. This is the law, and it seems quite clear.

First the critical parts, then the reference that has been misinterpreted above regarding the UN

PURPOSE AND POLICY

SEC. 2. (a)
It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.
SEC. 2. (b)
Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
SEC. 2. (c)
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

CONSULTATION

SEC. 3.
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

THIS IS THE PART THAT WAS MISINTERPRETED:

SEC. 8. (b)
Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high-level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date.

HEADQUARTERS OPERATIONS OF HIGH-LEVEL MILITARY COMMANDS is what it says; this does NOT include COMBAT OPERATIONS, and seems very clearly worded to make that distinct.

There is literally no leg to stand on here. Mr. Above-Reproach Constitutional Scholar looks like he was sloppy here, just as he has done regarding Faith-Based Organizations and the First Amendment.

[ProSense]

34. Wrong

The WPA and the U.N. Charter gives the President the power to act.

[PurityOfEssence]

108. The UN Charter itself states the nations' supremacy; the War Powers Act REQUIRES Congress' permissio

Article 43, Section 3:

"3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes."

They willingly subjugate themselves to the individual nations' laws. The UN Charter doesn't bind us unless we agree to sign away certain permission ahead of time.

The only laws that matter for the President's right to initiate war are our national laws, which are themselves interpretations of the Constitution.

The UN Participation Act states that a President may deploy forces without Congress' approval if done in response to Article 42 of the UN Charter (which WAS the one cited here) AS LONG AS HE HAS ALREADY SECURED AUTHORIZATION FOR A SPECIAL AGREEMENT FROM CONGRESS. What this really means is that the President is free to craft a special agreement with the UN, which MUST BE AUTHORIZED BY CONGRESS, and then, if this is still in effect, he can comply with a call to arms that cites Article 42 without having to go back to him. Yes, that's what that means, and you can read a very detailed analysis from the U.C. Berkeley Law Department that not only flatly states this, but exhaustively tells why and how it was done at the time. It's in part IV of this document:

http://www.law.berkeley.edu/faculty/yooj/courses/forrel/reserve/fisher.htm

It's much like what Bush did domestically with the Iraq Resolution: he got permission to use force at some point in the future. The deal was he'd sincerely try to resolve it without force, but was given the discretion to use it if needed. (Of course, he TRIED to get the UN's approval, but they wouldn't go along with it; I'm only talking about the legality in the eyes of the U.S. Constitution.)

[stevenleser]

81. Here is a basic Constitutional Law test for you.

What wins in a conflict, a law (Like the War Powers Act) or Article 2 of the Constitution?

[PurityOfEssence]

107. Per the "necessary and proper" clause (1-8), the War Powers Act IS the Constitution

The statutes that define the powers in the Constitution are the Constitution. It's what makes Congress a bit more powerful: by giving Congress the right to define what the powers granted by the Constitution are, Congress can draft and pass (or fail, if they can't) a law that literally DEFINES what the Constitution means. In this sense, the War Powers Act IS the Constitution.

They did a pretty damned good job, too, and even defined what was meant by war: "...introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."

Thus, the War Powers Act is actually dominant here, since it is the legal statute to define the powers.

Congress defined the powers, Nixon vetoed it, and they overrode him. It's the law of the land.

(edited for sloppy grammar)

[Hosnon]

114. The Necessary and Proper Clause does not vest Congress with that power.

It's simply a supplemental power to the enumerated powers (deemed necessary after the failure of the Articles of Confederation).

[masterbeta]

127. War Powers

CONSULTATION

"SEC. 3.
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations."

Which Obama has complied with.



"b) Termination of use of United States Armed Forces; exceptions; extension period
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or
(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces."


The declaration of war is only required after 60 days and even if no such declaration is granted a 30 day extension is there for removal of troops. So there's no way Obama has acted unlawfully pursuant to the War Powers Resolution.

As for your interpretation of section 8(b) regarding participation in headquarters operations of high-level military commands, this does admittedly make sense.
Alternatively it could be interpreted as a narrow exception to the requirement of express statutory authorization to allow the US to go to war pursuant to treaties ratified before 1973 e.g. NATO, UN Charter.
It wouldn't seem absurd to allow such a narrow exception since the President will nonetheless require congressional approval for domestic deployment and all other international deployments. In addition Congress retains the power of the purse.

[treestar]

43. I wonder was this same question brought up when Clinton or Bush

did it?

I'm not remembering.

[PVnRT]

46. Yes, per U.S. law

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=433x635737

[PurityOfEssence]

50. Absolutely incorrect; that US law specifically states the need for Congressional Authorization

I answered this on your thread, and I'm doing here.

The UN Charter is NOT the issue. The Supreme Court has decisively ruled that the Constitution supersedes any Treaty. Nobody is questioning whether Obama is in compliance with the UN Charter, so bringing up the UN Charter is completely irrelevant.

Here's the full text from OUR LAW from 1949, which was further buttressed by the War Powers act 24 years later, the caps are mine:

SEC. 6. The President is authorized to negotiate a special agreement or agreements with the Security Council WHICH SHALL BE SUBJECT TO THE APPROVAL OF THE CONGRESS BY APPROPRIATE ACT OR JOINT RESOLUTION PROVIDING FOR THE NUMBERS AND TYPES OF ARMED FORCES, THEIR DEGREE OF READINESS AND GENERAL LOCATION, AND THE NATURE OF FACILITIES AND ASSISTANCE, INCLUDING RIGHTS OF PASSAGE, TO BE MADE AVAILABLE TO THE SECURITY COUNCIL ON ITS CALL FOR THE PURPOSE OF MAINTAINING INTERNATIONAL PEACE AND SECURITY in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

Why do you not post the first part of this paragraph, where it very specifically says that this participation is SUBJECT TO THE APPROVAL OF THE CONGRESS? This is flagrant sloppiness by even the most charitable view.

[JackintheGreen]

63. Unless there is an existing treaty

previously negotiated under which the UN (and by extension the US) is now operating. The paragraph you add above does indeed require Congressional approval, but it does not mandate a named termination to authorizations so given. Thus an agreement could be reached and ratified by congress that amounts to a standing treaty for the US to participate in UN operations.

[PurityOfEssence]

71. Yes, that would be an Authorization

The Congressional act that allows participation in the UN also specifically requires the Congressional authorization.

[jefferson_dem]

52. Yes.

The War Powers Resolution has never been formally tested in the Supreme Court and courts almost always side with the presidential authority as commander-in-chief. Certainly, there are loads of historical precedent for what President Obama did.

Of course, some will try to conjure up any rationale to justify their distaste for Obama. This constitutional complaint is just the latest tool.

[OhioBlue]

119. exactly. n/t

[Alcibiades]

58. When has the constitutional procedure for delaring war

ever been followed? Hasn't been followed since WWII, and there have been plenty of wars, with no legal difficulties. As much as I think it's not great news that we are relying on nations such as Qatar to provide legitimacy to our efforts to enforce high standards of human rights, or that we're fighting our third war in the Muslim world, as a practical matter, the ability of the US president is without limit in matters of war. Don't be confused by any language in the US Constitution, the War Powers Resolution or anything else. Congress and the courts act as though the president has absolute carte blanche, and so he does. No war has been declared in the manner described in the Constitution since WWII. No president has even pretended to comply with the War Powers Resolution: in fact, they have all deliberately avoided compliance. As we have seen, the president's authority apparently goes so far as to establish an entire extrajudicial "legal" process, to include methods of interrogation popularized by the Inquisition and the Nazis, without ever having to face any sanction for any violation of any law. Compared to that, a straightforward air campaign against a ruthless dictator is easy. Any legal effort against the president's war would not be heard in any court. He's well within his rights. Anyway, that's what they taught me in grad school: the internet may say something different.

And as far as our own process, again, that's the point: our process amounts to this: the president gives the orders and the armed forces executes them. Now, since 2001, there has certainly been plenty of opportunity to change the process, to demand, for example, that the requirements of the War Powers Resolution be complied with. In this, we have seen Congress speak loudly: they are fine with it. Why wouldn't they be? They have always been more than happy to leave this one to the president. Who wants to have voted the "wrong way" on a declaration of war, after all? Folks who have voted either way on such things as "authorizations of use of force" (whatever that is, you won't find it in the Constitution) have caught heck from their constituents.

[PurityOfEssence]

66. Declaration: five times before 1945. Authorization: a bunch of times since

Nothing even close to the latter was done in this case.

Reagan, Bush I and Bush II ALL got authorization in at least certain circumstances, and this was specifically to comply with the War Powers Act, even though they all disliked and even disputed it. Clinton didn't, and he caught hell for it.

The idea that it's just some kind of pathetic and arcane concept is very disturbing, and the claim that none of the Presidents have even bothered to comply is specifically false.

Politicians are not "fine with it"; G.H.W. Bush's request for authorization in 1990 was VERY hotly contested. Bush 2's request was fairly hotly contested, even though ginned up to happen about 2 weeks before the first national election after 9-11. The idea that Congress has completely ceded any authority over war-making bears no scrutiny whatsoever. Being provocative can be lots of fun, but recklessly flouting laws and flagrantly misrepresenting well-known facts is dangerous; one has a certain obligation to at least TRY to approximate reality in an open forum.

You blithely state "facts" and broad strokes "common sense" that are not only not supported by the facts, but directly contradicted. Remember the Boland Amendment? That went even farther: it restricted the ability to even send AID or money to the Nicaraguan Contras. Remember Iran Contra? That was a truly impeachable, cynical abuse of power, and it wasn't even with troops.

This kind of backhanded "ah big deal; this is how the world really works" is nothing short of approval of bullying and might making right.

[Alcibiades]

83. If something was practiced 60 years ago, but not today,

isn't that the very definition of a dead letter? The fact is that presidents have specifically avoided taking actions that would "comply" with the War Powers Resolution, but simply have claimed to act in a manner that is "consistent" with it. I didn't pull this out of thin air: I am a political scientist, and this is what I was taught. And, if you look, you'll find that Congress itself has taken notice of it, so much so that they have investigated the question of the extent to which presidents have complied with the War Powers Resolution. And their research finds essentially what I said in my post earlier:

"Except for the report of June 28, 1993, Presidents Bush and Clinton did not cite the War Powers Resolution in their reports related to military activities in Iraq in the period after the 1991 Gulf War. Rather, they submitted them “consistent with” P.L. 102-1, which required the President to submit a report to the Congress at least once every 60 days
on the status of efforts to obtain compliance by Iraq with the U.N. Security Council resolution adopted in response to the Iraq aggression."

http://docs.google.com/viewer?a=v&q=cache:AznKS5u0QtYJ:www.fas.org/sgp/crs/natsec/RL33532.pdf

They have, in other words, found a way to comply with it without acknowledging its constitutionality. This is one of the many things Congress could change, but chooses not to : instead, as noted in the congressional report cited above, most of the action in Congress has been over the question of whether to abolish the War Powers Resolution, not to strengthen it. Despite the fact that, as you say, the authorizations of use of force have been hotly contested and presidents, especially Bush, have given Congress reason to regret their choices.

I am not in any way endorsing the status quo: I lament it greatly, which a more careful reading of my post might lead you to believe. But to understand that it is the status quo and how it might be changed, you have to first understand that it is. As a legal matter, it might be contested: but among the political scientists who study the reality of the relationship between Congress and the presidency, it is not a question: the president, in practice, has almost unchecked authority. I'm not citing common sense, but rather my knowledge of a rather voluminous literature on the subject.

The examples you cite further strengthen my point: no one was really punished in Iran Contra. If Congress took their constitutional responsibilities seriously, they would have impeached Reagan: they did not. The whole debacle surrounding the Iraq War was far worse than Iran Contra, but again, Congress did nothing, other than to sign off on an authorization of the use of force the commander in chief did not formally acknowledge as necessary in any event.

Put all that, and your rather hostile tone, aside for a moment, and remember this: 90 days. You ask whether what Obama did was legal, and that's the answer: the real effect, perversely, of the War Powers Resolution is to give presidents the ability to deploy US forces anywhere, at any time, for any purpose, for 90 days. The fact that Obama has not made an effort "consistent with" the War Powers Resolution could be a sign that he expects our involvement in Libya will last less than 90 days, at which point he'll still be free to act in a manner consistent with it. Or not. This president cannot even get a budget passed: I doubt that spending a lot of political capital on getting votes for something he probably does not even think will be necessary is high on his agenda.

But again, let's address the central question: why has Congress abdicated the responsibility for oversight of the war function it gave itself? This is a Congress that has allowed the president to torture people in violation of international law, for God's sake. If they're not going to take that fundamental challenge to the rule of law on, why does anyone think they will get serious about the War Powers Resolution, especially when the people most likely to want to oppose the president, the Republicans, do not themselves believe it to be constitutional.

This goes to the larger question of why it is that Congress delegates anything at all. There is a whole literature on this, but the essential answer is that Congress has other things to do. The latest literature on the subject holds that they have not abdicated this responsibility, but prefer to exercise it selectively, particularly when it seems that those to whom they have delegated authority are likely to do something to which they would either assent or to which they are largely indifferent. This does not mean, however, that Congress has ceded its power entirely: if a problem gets big enough, they can take action. The War Powers Resolution is a good example of this, but its inadequacies ought to be obvious at this point. What was needed after Bush lied us into war was the sort of outrage that gave us the War Powers Resolution: instead, we got nothing, and the effect is that the status quo remains in force: the president has the authority to do anything, anywhere, for 90 days, and can ask for approval, which will always be granted, BTW, if he thinks it will go on longer.

What I understand to be political science's understanding of the relationship between the president and Congress when it comes to questions of war is simply this: the president does what he wants, whenever he wants, to whom he wants. He will be able to continue to do this until Congress says no. Which they never do, individual histrionics notwithstanding. The fact that they failed to do anything even when Bush lied to Congress, the UN and God is further proof of this. Maybe that will change. I hope it does. That would be great. In my opinion, the best use of our time and effort would not be to give Congress new authority, because they have been reluctant to exercise the authority that they have, but to continue to elect presidents who can be trusted to exercise the authority they already have. Libya? I'm not all that mad at the president on that one yet. I still trust that he thinks this will not be a quagmire. His failure to prosecute the war criminals from the last administration, however, is something I find utterly inexcusable. For what it's worth.

[PurityOfEssence]

89. Yes, you sense the source of my ire: it's oddly akin to trademark protection

My intent is not to have this President impeached, and I don't want to see him expose himself to either that or accusations of high-handedness. I want our feckless, pernicious and slovenly regard for the law to be halted on this issue; due to our having cheapened the oversight--actually permission-giving--function of Congress, we get in more and more untenable adventures.

That's what I mean by the trademark protection comparison, which I presume sounds silly to many: if a trademark is not protected, and the holder does not sue infringement and grant usage rights, the trademark is deemed to have less and less value, and can finally cease to be enforceable. As our Presidents become more and more skittish and warlike, we hasten unintended consequences and achieve some nasty ones that ARE intended.

Much as I wish grievous ill on Bush and his Cabal, I don't think it's a great precedent to prosecute previous administrations; it smacks too much of purging, and it can escalate the partisan nature to an even worse state. They're literally murderers, but I see the point for this, and walk away with clenched jaw, muttering with disgust.

As for my bad attitude, I'd suggest that you tend to push my buttons, and I don't mean mine particularly, the tone of your posts is often ridicule, replete with rolling scoff-emoticons, so my snapping at you is something for which you can accept some responsibility. A lecture on manners from you is akin to Rumsfeld's outrage at having to spend $20K in lawyer fees to put his $93M in a blind trust, and I hope you take this egregious personal insult with the cackle I think you will. You should; your plane of discourse is a bit of a contact sport, and I'm fine with that, but I'd expect a bit more latitude for my attitude from the likes of you.

Thanks for taking the time for a detailed response, and I hope we all get through this time of extreme upheaval without too much personal tragedy. Things are VERY dangerous right now, and I'm tired of being on the side of the bad guys; that's part of why I like to see our Presidents restrained from their habitual adventurism.

[Alcibiades]

96. It's exactly like copyright protection

Had the same thought as I was writing the above. The silence and inaction of Congress on the subject of the increasing power of the president on national security issues since WWII (which itself transformed policymaking on the subject, since it created an entirely new and outsize interest group to lobby on bahalf of the permanent national security state) amounts to consent. Maybe if folks from the left, motivated by an antipathy toward the militarization of society, get together with folks on the right, who distrust this action simply because it's our president who took it, something can be done. Not sure anything lasting could be achieved, however: Congress' forays into this arena tend to be episodic, and they are continually fighting the last war. Perhaps the War Powers Resolution would be effective if we once again had a conscript military bogged down in a quagmire in southeast Asia. I don't know. Instead, our political environment is one wherein a professional, all-volunteer military fights continually, while the military industrial complex doles out goodies to enough states with enough votes that drawing the whole enterprise into question seems politically fruitless. It's a path dependent process: our Congress is fairly powerless in the face of executive power on questions relating to war because they have let that particular constitutional muscle atrophy. Which brings up the question that the military itself does not have the power to appropriate a single dime, and the disproportionate share of GDP that goes into it was authorized by Congress in the first place: given that they have done that, I don't understand how it is we can have any faith that they will stand up to the war lobby in an uncertain political environment.

As for my tone and use of emoticons, I didn't use any here, so I'm hoping you're confusing me with someone else. If I've posted something in the past that offended you, my bad. Looking at my earlier post, I think my real sin was to muddle my real points and try to deliver too many messages at once. The first point is an objective one, which is that, not matter what the legal or constitutional reasoning, Congress does not exercise any real authority when it comes to the choice of the president to involve the nation militarily: even when the president asks for an authorization, it is always granted, and for Congress to be credible on this subject they would occasionally have to say no, which they never do. The second point is a normative one: Congress has allowed its grant of authority to be interpreted too broadly, particularly in the case of Bush and the setting up of an unconstitutional extralegal apparatus that, among other things, tortures people, including innocent people, in violation of US and international law. This point is normative in that I'm saying this is bad, and that the perpetrators ought to be prosecuted, because I think it's inconsistent with American values. The final point is political: I still, despite everything, trust President Obama's judgment. Everything else notwithstanding, I don't think he will bog down his presidency by embroiling us in yet another endless occupation in the Muslim world. Really hope I'm not mistaken again on that score: I had thought Guantanamo would have been closed by now.

[PurityOfEssence]

97. Yes, I absolutely DID confuse you with another poster

There's a member with a very similar name who is a prototypical, full Boojumlike Snark of the first order, who often posts drive-bys with rolling on the ground emoticons and likes to provoke. I will explain in a private post, but wanted to make it clear here for all to see.

My apologies for that, and that's why I was a bit tart.

I personally hate the ridicule version of "debate"; the point is to humiliate dissenters into silence or hound them from the board by inciting further feeding frenzies. It's a similar dynamic to calling someone a racist or a sexist or a troll, and is a shortcut to proving one's point: silencing contrary opinions.

Congress actually did give a lot of very real resistance to Clinton over his extension of the Somalia incursion, and it actually was a heartening example of the dynamic as it was presumably meant to be: he actually swayed Dole and got enough concurrence from Foley that they were willing to compromise, and they eventually accepted his very revised timetable. They actually defended the brand a bit there, and they made him work for it. Of course, he wasn't pleased, but just the reminder of the dynamic actually playing out as it should is a good shot in the arm for democracy.

As for Mr. Obama's judgment, I simply cannot concur. He is a cipher, and probably somewhat so to himself, since his whole career has been positioning and caginess; what, if anything, does the man believe in? He's a decided corporatist, but I give him the benefit of the doubt, presuming he considers this a necessary evil instead of a divine good. Who knows, though? He so prides himself on his being a blank slate upon whom people write whatever they feel that I'm virtually unable to empathize with the man; that outlook on life is so very, very foreign to my view that I find it literally alien. His tactical judgment is wholly lacking and shockingly dangerous; he is the ultramoderate Prince Regent of favor-currying and glad-handing. He's not so much a leader as a concierge, and I'm sick to death of it. It's dangerous. You CERTAINLY don't fight wars like that.

I want Congress' powers to be reclaimed and sustained, and I worry about Obama having exposed himself and us to retaliation from the right.

Thanks for the insightful and candid posts, and I hope to see you more here.

[Hosnon]

90. +

Nicely put.

[thelordofhell]

91. Yes

[creon]

100. moot

The question is moot.

The argument can only be ended by a bill of impeachment passed by the HoR and trial by the Senate.

The real issue is: the wisdom of the campaign.

That matter turns upon this question: Will, at the end of the day, the Libyan people be worse of or better off?
On that matter, the issue is in doubt.

[Hosnon]

101. +1.

Except that I don't think the issue is moot, because compliance/non-compliance with various statutes and treaties will affect the political calculus regarding impeachment.

[creon]

102. Congress

Congress will have to decide that matter -- if it decides.

I have doubts about whether Congress will take up the matter seriously. The GOP does have the real chance of turning it into black comedy. I expect those people to do just that - turn it into farcical black comedy.

[Hosnon]

103. I think the chances of impeachment are slim to none.

For all its moaning and groaning, Congress usually tags along with the President in these kinds of situations.

[creon]

105. agree

Won't happen.

Congress will, eventually, sign off on it.

[nalnn]

106. I am not a lawyer but...

Heh

Constitutional or not, it doesn't seem to me we should be involved in fighting any additional wars.

[NorthCarolina]

117. Seems odd that the law could be so convoluted that nobody can determine for sure

whether the action is Constitutional or not. I have seen argument for BOTH sides of this issue, and have to admit that both arguments have their merit. What I can say though is that it clearly seems ludicrous that ONE MAN (President or not) can make the determination to involve the country in war, even if for only 60 days or less. That in itself hardly seems "Democratic", and really closer to that of a monarchy. Perhaps Congress should make some "clarifications" to this assumed Presidential power....for future occurrences.

On edit: typo (detrmine => determine)

[sad sally]

118. It's a done deal - doesn't matter. Neither the current DOJ or any

future DOJ will ever pursue. As we all know, our Democratic leaders would never lie to us, and if a conflict exists between the constitutional and unconstitutional, new laws can be written to correct any flaws.

[DutchLiberal]

123. No, indefinite detention, extraordinary rendition & extrajudicial executions aren't Constitutional.

Oh, I'm sorry, you weren't interested in that?