Congress’ Power to Authorize Limited Hostilities

Does Congress have constitutional power to authorize limited strikes on Syria?  In his otherwise outstanding post on Congress’ war powers, Michael Stokes Paulsen suggests that the answer might be no:

… [I]t is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.

I’m not sure which versions of the resolution are meant here, but the principal proposal — (a) limiting the use of force to degrading Syria’s chemical weapons capacity, and (b) limiting the use of force to air power — seems well within Congress’ power to declare a limited war.

The leading article on this subject is by Saikrishna Prakash in the Texas Law Review: The Separation and Overlap of Military Powers.  From the abstract:

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

While I would not go quite as far as Professor Prakash (see here), I agree that Congress has substantial ability to set the goals and limits of the use of force in connection with an authorization of war. 

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Another Notable Amicus Brief in Bond v. United States

In noting the principal amicus briefs in Bond v. United States, I overlooked this one on behalf of Chemical Weapons Convention Negotiators and Experts. As described in this news release from Indiana University: In the brief, the arms control experts support the U.S. government’s position that, properly interpreted, the treaty requires states parties, including the United States, to apply its prohibitions on…

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1973 War Powers Resolution is Unconstitutional, Too

the WPR is profoundly unconstitutional because it cedes Congress’ constitutional war-making power to the president. The WPR was an ill-conceived political compromise effectuated by a Watergate-weakened president, congressional hawks who approved of Nixon’s unilateral invasion of Cambodia and sober congressional heads more faithful to the separation of powers.

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The Pentagon vs Texas and Mississippi

I was contacted by a reporter from LifeSiteNews.com asking for comment regarding a news item in Texas and Mississippi. According to the Associated Press, the Texas and Mississippi National Guards “won’t give same-sex benefits at some locations,” citing state gay-marriage bans.

Setting aside my own personal view that government-issued marriage license are an affront to the peace and liberty of people from all backgrounds (and were often used in the 19th century as an attempt to prevent interracial marriage), there certainly are some important constitutional issues here.

Constitutionally-speaking, the National Guard of each state is not like a county – a simple political subdivision of the Pentagon. The Constitutional articles of note are:

Article I, Section 8, Clause 15:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

and Clause 16:

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An Impeachable Offense

by Jacob Hornberger, Future of Freedom Foundation

Make no mistake about it: President Obama’s 90-minute telephone conference call with a group of congressional “leaders” to consult about his plans to initiate a military attack on Syria does not comport with the U.S. Constitution, the higher law that the American people have imposed on federal officials.

The Constitution is clear: The power to declare war lies with Congress, not the president. Like it or not, under our form of government the president is prohibited from waging war without a declaration of war from Congress. If someone doesn’t like it, he’s free to start a movement to amend the Constitution to enable the president to both declare and wage war.

From a legal standpoint, it makes no difference that previous presidents have waged wars without the constitutionally required congressional declaration of war. Prior violations of the Constitution do not operate as an implicit amendment of the Constitution. If Obama proceeds to carry out his threat to initiate war against Syria, he will be committing a grave constitutional offense.

The Framers did not want President Obama or any other president to have the omnipotent, dictatorial authority to send the entire nation into war on his own initiative. They knew that rulers inevitably embroil themselves in things like “saving face,” “maintaining credibility,” and “showing toughness.”

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The Supremacy Clause and Proper Constitutional Bounds

Critics are quick to point out that the doctrine of nullification has never been legally upheld. In fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958.

They say that the courts have spoken on the subject, and under the Supremacy Clause, federal law is superior to state law. Further, they argue that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.

The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of nullification as the other branches are.

Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

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Questioning Congress’s legislative authority to implement treaties

by Amanda Frost, SCOTUSblog

Bond v. United States is back before the U.S. Supreme Court, and this time it raises a question that has long interested academics:  What are the limits on Congress’s power to implement treaties?  Missouri v. Holland, decided in 1920, held that Congress could enact legislation implementing a treaty even if such legislation was otherwise outside the scope of its Article I, Section 8 authority.  The decision is now canonical, and it has been widely accepted by most academics and followed by courts.  Then, in a 2005 article in the Harvard Law Review, Professor Nicholas Quinn Rosenkranz challenged Missouri v. Holland’s rationale and asserted that it should be overruled.  His arguments are now front and center before the Court in Bond.

The facts of Bond are unusually colorful.  After Carol Anne Bond’s husband had an affair, Mrs. Bond sought revenge by sprinkling toxic chemicals around the car and mailbox owned by the woman involved.  Prosecutors charged her with violating a federal statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (also known as the “Chemical Weapons Convention”), to which the United States is a signatory.  Mrs. Bond argued that Congress lacked the authority to criminalize her conduct, asserting that the statute is a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” 

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An Anti-Federalist’s Purpose for Proposing the Supremacy Clause

As the Philadelphia Convention concluded,  55 delegates returned to their home states and began the promotion/demotion phase of the ratification process. This process commenced with the convention delegates addressing the citizens of each state and each state’s ratification delegation.  Each Framer communicated his comprehension of the legal elements of the charter negotiated for during this historic endeavor.

The delegates generally represented two distinct factions known as the Federalists, supporters of ratification, and the Anti-Federalists, those opposed to the proposed constitution. Delegates regularly traded intellectual barbs through written prose promulgated in the local periodicals of the states.

An occurence which became commonplace during this process was Maryland’s Attorney General, Luther Martin responding to letters written by the Landholder,  a nom de plum (pen name), utilized by fellow Philadelphia Convention delegate Oliver Ellsworth of Connecticut,  in which Mr. Ellsworth attempted to minimize Martin’s contributions and negatively impact his service.

Martin’s letter was published in the Baltimore Maryland Gazette on March 19, 1788.

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Stop and Frisk: No Feds Needed.

Recently a Federal Judge, Shira Scheindlin, declared the New York City Police departments “Stop and Frisk” procedure Un-Constitutional and called for a federal monitor to watch over the police department to ensure Police Officers are in compliance with the constitution.

This happened without a peep of protest from any New York State elected official, Judge or lawyer.

You would think that Governor Cuomo would be at the fore of the angry protest against Federal intrusion into what is clearly a State Police power. Where does Justice Scheindlin believe her authority to rule on this matter come from? Not the United States Constitution.

The “Stop and Frisk” procedure is clearly un-Constitutional, however, it is the New York State Constitution that matters.

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Where is the Power to Suspend Habeas Corpus?

The Constitution’s Suspension Clause (Art. I, Section 9, cl. 2) limits when the writ of habeas corpus can be suspended. But the Constitution doesn’t seem to grant the federal government power to suspend the writ in the first place. Why not? And why limit a power never given?

In an Aug. 17 Wall Street Journal piece, constitutional law professor Nicholas Quinn Rosenkrantz infers that Congress has the sole suspension authority from the structure of the constitutional text. He writes:

“Since the Suspension Clause appears in Article I of the Constitution, which is predominately about the powers of Congress, there is a strong argument that only Congress can suspend the habeas writ.”

He concludes that when President Abraham Lincoln suspended the writ, he probably intruded on Congress’s prerogative, and thereby exceeded his constitutional authority. (Professor Rosenkrantz also gives Lincoln credit for trying to cure the constitutional defect.)

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