In this article, Orson Scott Card makes the case for GWB asking Congress for a declaration of war against Iraq - now, so as to prevent him using the War Powers Act again to circumvent the Constitution.
Is this an issue that concerns “the American People”? Or is the wave of patriotisim fevour still riding high?
Grim
**
I wasn’t aware that the War Powers act circumvented the Constitution of the United States of America.
Nope, we’re all a bunch of jingoistic flag waving yahoos who pay no attention to what our government does so long as we’re feeling patroitic. :rolleyes:
Marc
From my experience here and elsewhere, Grimpixie, the American People have lost their vigilance and resolve with respect to their liberties. The buzzards are circling the carcus, and just don’t yet realise that it’s dead.
>> The buzzards are circling the carcus
Surely you mean the “circus” _
He’s making a case? Really? Where?
Seriously, much of the article contains non-sense lined up to from sentences. For example:
Huh? It’s bad enough that no-one knows who the United States feels they need to fight, but now to go and make it official? A great thing, without doubt.
Or take:
Which is non-sense. The War Powers Act does precisely the opposite. It limits the duration in which a President can fight a war without Congressional approval to sixty days, with periodic reports in the meantime and a maximum 48 hour delay until the President must inform the Congressional leadership of the purpose of the military action. In other words, the President uses and has used his inherent powers as Commander-in-Chief to fight wars which Congress would not support, hoping that the War Powers Act is NOT used by Congress to stop said war.
Moreover: [War Powers Act Quote:]
I’ll admit to taking this quote out of context and not posting the qualifiers which followed this bit. But do take notice that the Act itself stipulates that “to introduce U.S. Armed Forces into hostilities […] pursuant to a national emergency created by attack upon the United States […]” is in fact within the Constitutional Rights of the President.
Then we go on to:
BS, friend. Precisely the opposite is the case; what’s more, the War Powers Act is not “invoked” – it stands. Just as you don’t “invoke” speed limits if you catch someone speeding – they too just stand.
So maybe the issue isn’t that the American People are riding on a wave of patriotism, but that columnists can’t get their facts straight.
There is a school of thought that believes that the War Powers Act is indeed unconstitutional - though for exactly opposite the reasons Mr. Card sets forth.
Mr. Card is dead wrong in believing that the War Powers Act allows the President to engage in military operations without the benefit of Congressional approval. Instead, the War Powers Act is an attempt to limit the President’s ability to engage in such unapproved military operations. It was enacted in the 70s in response to the “non-wars” of Korea and Vietnam.
And that is precisely what the opposition to the War Powers Act says is unconstitutional. No president has recognized the War Powers Act as constitutionally valid - although none have formally challenged it, as they don’t want to lose in court. Likewise, Congress has never fully enforced the War Powers Act, for the exact same reason.
Sua
Begging your indulgence, but why?. Is the belief that the Constitution grants the executive unlimited powers to wage war so long as war is never declared? Isn’t that a bit like saying that the fact that war declaration is reserved for Congress is moot?
Or is it unconstitutional because it’s redundant? I.E: The executive isn’t allowed to use the military to fight at all without a declaration of war, and thus setting limits on the executive’s use of undeclared-war-powers is nonsensical?
thanks,
tj
Tejota :
The problem is that the War Powers Act (or Resolution) works on the basis of the Legislative Veto; that is, Congress grants the President general powers, and retains the right to veto the exercise of those powers in specific cases which it reviews, by Concurrent Resolution.
However, the Constitution holds that such Resolutions are subject to Presidential review and veto in turn, while the Act makes the Congress’ decision binding and non-vetoable.
It essentially leaves Congress with the last word, turning around the constitutionally ordained order of things.
Case in point, somewhat, being if I recall correctly “Immigration Service v. Chandra”.
TheSnack, that’s one of the constitutional objections.
The other one is this –
The Constitution says this –
The President has the power to order the military to act as the President directs. The War Powers Act says that the President doesn’t have that power except under specific circumstances. OTOH, only Congress has the power to declare war.
It’s a difficult question. On balance, I think that the War Powers Act is unconstitutional.
Congress does have a remedy if it disagrees with the President’s decision to use the armed forces to engage in combat operations, however. Congress can simply cut off the money used to pay for those operations. That is a politically unpalatable act - can you imagine the response if Congress cut “our boys” off in the middle of combat? Congress enacted the War Powers Act so they wouldn’t be placed in that situation. Unfortunately for them, IMO they don’t have the power to do that.
Sua
Sua, how embarrassing: there I go quoting the passage a message ago, and didn’t see the problem. Oh well…
I know it’s a hijack, but to find out about the intended meaning of the Commander-in-Chief clause, we might find hints in Madison et al’s reactions to the Quasi-War with France of 1801, and Jefferson’s operations against the Barbary States. Both were military operations under Presidential orders against states with which diplomatic relations existed – therefore a declaration of war would have been in order.
If Madison objected to the use of force in these cases, or demanded Congressional supervision and/or control, we might deduce that the framers intended the CinC clause ONLY to apply in wartime [as a further aside, a conclusion that may be supported better if there is also an indication that they did not intend a standing army & navy; for in that case, with armies raised only in wartime, the CinC prerogative would also only apply in wartime].
Would you know anything on that matter? Else I’ll see if the library offers some insight.
Unfortunately, I don’t. Have fun in the library. 
One point to bear in mind with your research - even if you find something from Madison, Madison’s opinions don’t constitute the full answer. While Madison was one of the most important parties to the Constitutional Convention, in the end he was only one of 39 signatories, and the Convention as a whole did not set forth explanations of the various clauses of the Constitution.
Which is why, to self-hijack, “original intent” is a bogus jurisprudential theory. The “original intent” cannot be determined.
Sua
If I may be of some service, TheSnack, I believe that Jefferson’s actions against the Barbary Pirates was mostly applauded by most people. However, it was because of the time constraints of travel and communication back then. Jefferson’s peers felt that if something came up while Congress was out of session, it was unrealistic to expect the pres to call a special session of Congress to deal with the matter since that would take some time.
This is all off the top of my head, and I’m pretty sure it’s a nice summary of what you are going to find. But I won’t be surprised if someone comes in here and cites the heck out of my assertions.
How are speed limits not invoked when someone is caught speeding? Are you confusing “invoke” with “revoke”?
The Ryan- The idea is that the Speed Limit is a standing law, always in effect. If you’re sitting at home, watching TV, the speed limit is still 65. To invoke a law would mean that the law is only in effect if it is necessary, or under particular circumstances.
My question about Wars vs. Military Actions is this: How can we expect the US military and the government to act swiftly and decisivly when the government is split on such incredibly partisan lines? Would we have gotten involved in the Gulf War if it had been up to Congress to vote on it? Would we be active in Afghanistan if we had needed a 2/3 majority to do so?
I believe that the War Powers are in place so that the president can take action when the good of the nation is necessary, swftly. The problem has become when determining what is “good” for the nation.
As a practical matter, of course there would have been a 2/3 majority for our involvement in Afghanistan. Hell, it may have beaten the vote for WWII and been a unanimous vote.
In any event, where’d you come up with 2/3 majority? A declaration of war requires only a majority vote.
BTW, Congress did vote on our involvement in the Gulf War. A joint congressional resolution authorized the use of the military to expel Iraq from Kuwait. It would have been an interesting constitutional quandry had Congress defeated the resolution, but that didn’t happen.
What do you mean by “war powers”? The point is that the President is CinC at all times, whether peace or war.
Sua
No, “invoke” means “call upon”. Just because no one is calling upon a law, that doesn’t mean it isn’t in effect.
The Ryan,
You are looking at the wrong definition of the word. Invoking the War Powers Act is to put it into effect. The speed limit laws are in effect all the time.
On this point, there are the The Prize Cases, 67 U.S. 635 (1862), which the Supreme Court decided in the midst of the Civil War. [I posted these quotes earlier this year, but they appear to have got gobbled up during the Lost Month, so I’ll re-post them.]
The Court was dealing with the validity of federal seizures of merchant ships that were trading with the Confederacy, contrary to the blockade which Mr. Lincoln had imposed. The owners of the ships argued that since Congress had never formally declared war on the states in rebellion, the President could not rely on his powers as C-in-C to authorise the seizure of the vessels.
The Supreme Court rejected the argument and held that Mr. Lincoln could use the war powers in the circumstances, even though Congress had not declared war. The Court stated:
I would have thought that this decision strengthens Sua’s argument that Congress cannot place restrictions on the President’s powers as C-in-C.