Something tells me that there is a bit of a difference between the validity of implicit consent of a dad, and the implicit consent of Congress.
Are you deliberately ignoring the point that there is a substantial difference between implicit and explicit consent?
It seems to be arguing as if law can be based simply on intent. Well, generally that isn’t the case. Intent is a very inexact thing, and law needs to be precise.
I thought Stark’s analogy was a very natural and appropriate one. It uses an exaggerated senario to hit the point home, but it shows why the difference between implicit and explicit consent is important.
I admit I used the term “implicit permission” in my original post, but in thinking more about this situation I came to the conclusion that the permission granted by Congressional funding was actually explicit. Hence the explanation in my post earlier today:
Clinton asked for funds for the expressed purpose of continuing the assault on Yugoslavia, Congress agreed. I think that is pretty explicit permission. Had Clinton asked for an $X billion increase for general military spending, and used those funds to further assault Yugoslavia, then Stark may have a point.
I still don’t like Stark’s analogy. In the currrent situation we have legislation (the War Powers Act) and precedent (Dessert Storm among others) to account for the funding request. Stark’s analogy has Congess funding something that exists niether in theory nor in practice. I don’t see how that illuminates his point.
Undead Dude - Most times when people refer to me as an it, “it” is preceded by “sh”.
The overwhelming majority of people have more than the average (mean) number of legs. – E. Grebenik
I think by definition, for the permission to be explicit, they would need to actually state that they approved. Approval by action only is implicit.
I think that the it illustrates the point that if you do not require specific rules for procedure (such as in the case of implicit and explicit consent), you can set the precedent for misuse of laws. Perhaps a better example would be a case in which a person pays a fine for a crime without pleading guilty. This might be interpreted as an implicit admission, but it isn’t treated as such legally. Also, if I pay a person for services that I don’t belive I should need to pay for, I can still sue for that money. In this case, what could be interpreted as implicit consent again is not legally consent.
My take on this is that it may or may not be illegal, but it doesn’t matter. Congress would never be crazy enough to prosecute the president for something that they gave clear implicit consent to. That would be a clear misuse of power.
UDD - I still maintain that approving funding for a specific purpose explicitly approves the purpose, but really that is beside the point. I agree completely with your last paragraph. Unfortunately, politics is more of an art than a science.
Stark - I owe you an apology, I should have presented my point without being so snippy. Guess I’ll have to quit reading the BBQ Pit and Great Debates forums before GQ. Puts me in the wrong frame of mind.:0
The overwhelming majority of people have more than the average (mean) number of legs. – E. Grebenik
I don’t know about impeachment, but just for the record here, today a federal judge dismissed a War Powers Act lawsuit filed by 26 members the House who wanted the bombing of Yugoslavia by U.S. forces to be declared illegal. The suit was based on a split 213-213 vote that failed to authorize U.S. participation in the NATO bombing. The judge cited inconsistencies in the Congress’ record in four votes directly aaddressing the Kosovo issue, including the above mentioned funding authorization.
The judge said, "213 representatives who voted against authorizing the president’s actions and against a declaration of war also voted in favor of supporting the troops and appropriating money to fund the conflict in Yugoslavia and against directing the president to remove the Armed Forces from their positions. …absent a clear impasse between the executive and legislative branches, resort to the judicial branch is inappropriate.’’
I agree with that earlier part about this thread belonging in the great discussions board, or whatever it is called.
There’s a problem with the “if Congress approves money for a military action it is implicitly approving the use of force” line of thinking, and that is that if you get really technical about the Federal budgeting process, there are things called authorizations and things called appropriations.
The short version of the difference (because I can only explain the short version) is that authorizations allow the government to do something (within certain limitations, usually a cap on funds which can be spent); while appropriations actually provide the programs/operations with the money.
So, for example, if the Air Force wants to build another B-2 bomber, Congress must first pass an authorization bill giving the Department of Defense the ability to do so. Then an appropriation bill must be passed to move the money from the General Fund to the Buy Another B-2 account.
Thus, as I understand it, a simple appropriation cannot give -permission- for the government (or the president) to actually do anything, it just gives them the means.
Of course, things are a lot more complicated than this. For example, for many programs Congress simply doesn’t do the yearly authorization bills. They just make things easier by authorizing programs in an appropriations bill, which, as I understand, it technically against the rules, too.
I think you all are missing the political angle of this question.
I don’t agree with Judge Friedman’s ruling, BTW. Funding doesn’t equal authorization.
What funding does equal is Congress’ unwillingness to challenge the President over Kosovo. The situation there, even now with peace plans being discussed, is murky. It’s not like Kuwait or Pearl Harbor, where the course was obvious.
The Republicans in particular don’t want to stick their necks out and oppose what might become a great triumph for the President. They’d look stupid. So they waffle, approve funding to ‘support the troops’, but remain divided on actually supporting the war offically. This keeps their options open.
Political reality makes the WPA a toothless law. If in '73 they had managed to make it a Constitutional Amendment and not just a joint resolution, it might not be so. I applaud the efforts of Campbell and the other lawmakers - I believe the Prez has walked into a situation the WPA was designed to prevent.
Dr. J: apology accepted. I’ve been away for a few days, and just got back. I have to admit that upon reading your post that started, “let’s see if I can explain this on a level you can understand …” I was ready to give up on any chance of intelligent discussion with you. So your realization of your snippiness is appreciated.
And at the risk of sounding as if I’m lording your apology over you, Dr. J, please be more careful with your posts. Words are all we have here – no gestures, no body language, no facial expressions. It’s just words, so please be careful with them.
Your father-son analogy is correct for most situations – but Congress is not one of them. Erik Raven is correct about authorizations vs. appropriations; in “real-life,” they often equal the same thing. Not so in Washington, though.
Congress is indeed sending mixed messages when they vote on four Kosovo-related bills in one day and come up with what seems to be a different outcome for each. But a mixed message does not authorization make.
At this point, I figure we’ll just have to accept the fact that, absent a higher authority to definitively settle this, we’re not going to see eye-to-eye.
~ Complacency is far more dangerous than outrage ~
