Friday, December 16, 2005

Declaring War and Executive Power

In the run-up to the invasion of Iraq, I published an op-ed in the Detroit News (8/28/02; the page is no longer available on the paper's web site, but if you want to see it, email me and I'll send it to you) arguing that the president did not need Congressional authorization to deploy troops for the invasion. My claim was that over time, as a result of precedent and Supreme Court rulings, Congress had effectively ceded the power to command troops to the president. However, Congressial war powers are still very important, and take two distinct forms. One is the power of the purse: If Congress is truly opposed to the use of force, they can cut off funding. Second, a formal declaration of war is essential if the president wants to mobilize or use the domestic arena in pursuit of the military objective. For example, during the Korean War, President Truman wanted to seize a steel mill that had been shut down by a strike, arguing that it was a critical part of the war effort. The Supreme Court, in Youngstown Sheet & Tube Co. v. Sawyer (United States Supreme Court, 1952), declared the seizure unconstitutional, as it was an executive order that infringed on an individual's status, and therefore was legislative in nature. In his opinion for the court, Justice Black wrote that although the President is Commander-in-Chief, this role does not carry over into the domestic arena, but applies only to the actual prosecution of the hostilities. Therefore, if the president, in the course of prosecuting a conflict, needs to seize an industry, establish rationing patterns or special production schedules, or suspend the writ of habeas corpus, he must have a declaration of war from Congress. I concluded the piece by arguing that while the president could invade Iraq without a declaration of war, he might not want to, as the very nature of the war made it likely that he would in fact want to operate in the domestic arena.

Today, we learn from the New York Times that President Bush secretly authorized the NSA to spy on Americans without a warrant, using the September 2001 resolution that authorized the president to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. However, this is not a declaration of war. And, in particular, it lacks the crucial language that modern delcarations of war have contained, which states that "all of the resources of the country are hereby pledged by the Congress of the United States." This language is present in the declarations for WWI and II. It is a recognition by Congress that total war is in fact total, and may require the president to act domestically in a legislative manner.

Absent such language in a formal declaration of war, I highly doubt that the president's authorization of domestic spying is legal. And legal or not, it is certainly troubling. Especially in a war that has few metrics for victory (and I refer here to the war on terror, not the war in Iraq), it seems imperative that the president's power to do things like this be controlled by Congress.

16 Comments:

Blogger randomopinion said...

Hmmm. Your post has "high crimes and misdemeanors" (metaphorically) spelled all over it. I suppose the same idea is in the back of the President's mind every time he repeats what they told him in one of those internal memos: that he'd be acting within his "constitutional responsibilities and authorities" when giving the green light to unwarranted eavesdropping on US citizens.

Can't wait to read how the "renegade lawyers" (as Philippe Sands calls them) defend this new violation of basic freedoms.

12/19/2005 11:28 AM  
Blogger poston said...

There are ed hardy shirts
,pretty ed hardy shirt for men,

ed hardy womens in the ed hardy online store

designed by ed hardy ,
many cheap ed hardy shirt ,glasses,caps,trouers ed hardy shirts on sale ,

You can go to edhardyshirts.com to have a look ,you may find one of ed hardy clothing fit for you
Top qualitymen's jacket,
These cheap jacket are on sale now,you can find
north face jackets inmage on our web
Ralph Lauren Polo Shirtsbuberry polo shirts

Authentic chaussure puma
chaussure sport
And chaussure nike shoes
Come here to have a look of our Wholesale Jeans
Many fashionMens Jeans ,eye-catching
Womens Jeans ,and special out standing
Blue Jeans ,you can spend less money on our
Discount Jeans but gain really fine jeans, absolutely a great bargain.
http://www.weddingdressseason.com

http://CLOTHES-WHOLESALE.US

7/08/2009 4:53 AM  
Blogger Apa Saja Dah said...

Find and download what you need at Rapidshare Search Engine.
Top Site List Free Proxy Site Free Download mp3 Michael Jackson song All Michael Jackson Lirics Oes Tsetnoc Mengembalikan Jati Diri Bangsa

11/09/2009 11:07 AM  
Blogger Adi said...

Oes Tsetnoc one of the ways in which we can learn seo besides Mengembalikan Jati Diri Bangsa. By participating in the Oes Tsetnoc or Mengembalikan Jati Diri Bangsa we can improve our seo skills. To find more information about Oest Tsetnoc please visit my Oes Tsetnoc pages. And to find more information about Mengembalikan Jati Diri Bangsa please visit my Mengembalikan Jati Diri Bangsa pages. Thank you So much.
Oes Tsetnoc | Semangat Mengembalikan Jati Diri Bangsa

11/26/2009 1:22 AM  
Blogger Term Papers said...

Nice post...

12/15/2009 6:00 AM  
Blogger Term Papers said...

It has been happening since rise and races.
Term papers

1/02/2010 1:36 AM  
Blogger polo shirts said...

History of polo ralph lauren. Polo fashions had its humble beginnings in 1968 when tie salesman Ralph Lauren gave it a kick start. By 1969 he had a boutique polo ralph lauren factory stores within the Manhattan department store Bloomingdale's. ... Brands and luxury standard. Since Ralph Lauren's first brand, Polo Ralph Lauren, was launched, the company has expanded to include a variety of luxury brands such as Polo Golf, Polo Denim, Polo Sport. You can buy cheap Ralph Lauren Clothing at Ralph Lauren outlet.Also We provide polo shirts
Ralph Lauren polo shirt, 50% OFF! polo ralph lauren outlet online is your best choice!In 2006, polo ralph lauren outlet became the first designer in Wimbledon's 133-year history to create official uniforms for the tournament. As part of this year's event, which starts next week, polo ralph lauren sale will introduces the first ... determination to maintain and enhance the values for which our two brands are famous throughout the world. The rugby ralph lauren brand brings to Wimbledon the look of timeless elegance, drawing on our rich history and traditions

8/15/2010 8:21 AM  
Blogger Custom Essays said...

I've read your stuff before and your just too awesome. I love what you've got here, love what your saying and the way you say it. You make it entertaining and you still manage to keep it smart. I cant wait to read more from you. This is really a great blog.

Custom Essays

11/27/2010 3:02 AM  
Blogger Advantagepapers said...

The Declaring War and Executive Power is nice thing to have, I think such information has good to know about and this kind of things do needs to happen.

Essays

12/02/2010 6:47 AM  
Blogger myessayspace said...

I think product development is a broad field of endeavor dealing with the design, creation, and marketing of new products.

Regards!
Term papers

12/23/2010 1:27 AM  
Blogger Jeong said...

I can not in any case agree with your argument that Congress can cut the funding for any war that president declared. There has to be a way of having these arguments much advance of declaring war in the future.auto insurance quotes auto insurance companies

3/21/2011 6:26 PM  
Blogger beautifuls said...

Cambridge Satchel Fluo Yellow lottery for Three times. Their clients are also stating the same thing once they attempted this technique out. Fluo Pink Cambridge Satchel This was the machine Larry utilized when he received Fluro Cambridge Satchel the actual lottery for Fluro Cambridge Satchels. Buy cheap Cambridge Satchel Fluo Pink and Fluo Yellow Cambridge Satchel.

2/22/2012 2:33 AM  
Blogger Hannah bolton said...

Anyone can comment on blog but main thing is that comment is meaningful. I think comment also increase the reader Inters
about that blog which is most important.

business phone broadband

2/05/2013 7:44 AM  
Blogger Rainman Mark said...

I liked your article, I will share your article to everyone!!




RS gold|Diablo 3 Gold|GW2 gold|WoW Gold

3/02/2013 6:06 AM  
Blogger GuildWars2Items said...

The consequences of today are determined by the actions of the past scarlet blade gold. To change your future, alter your decisions today scarlet blade gold, Experience is a hard teacher because she gives the test first, the lesson afterwards scarlet blade gold, but it takes character to keep you there.

Life is like a hot bath. It feels good while you're in it, but the longer you stay in, the more wrinkled you get rs gold, Life is too short to wake up in the morning with regrets. So, love the people who treat you right and forget about the ones who do not Runescape Gold, In the Orient young bulls are tested for the fight arena in a certain manner rs gold. Each is brought to the ring and allowed to attack a picador who pricks them with a lance..

4/19/2013 1:37 AM  
Blogger Willie Sager said...

Nice post with awesome points! Can’t wait for the next one.

HP - 14"EliteBook Notebook 8 GB Memory - 500 GB Hard Drive - Gunmetal

HP - 14"ProBook Notebook 4 GB Memory - 320 GB Hard Drive

HP - 12.5"EliteBook Notebook 4 GB Memory and 128 GB Solid State Drive

HP - 17.3" ENVY Laptop - 8GB Memory - 750GB Hard Drive - Nero Black/Natural Silver

HP - 14"EliteBook Notebook 4 GB Memory - 500 GB Hard Drive

HP - 15.6"EliteBook Notebook 4 GB Memory - 500 GB Hard Drive - Platinum

HP - EliteBook LJ542UT 14" LED Notebook - Intel Core i5 i5-2520M 2.50 GHz

HP - 12.5"EliteBook Notebook 4 GB Memory - 320 GB Hard Drive

HP - 14"EliteBook Notebook 4 GB Memory - 500 GB Hard Drive - Platinum

HP - 17.3"ProBook Notebook 4 GB Memory - 500 GB Hard Drive

6/20/2013 10:49 AM  

Post a Comment

<< Home