Bush justifies departures from the strictures of law by invoking:
!. The constitutional declaration that the President is Commander in Chief.
The post 9/11 congressional resolution authorizing the use of force against the perpetrators of that attack.
Suppose Congress were moved to vindicate its “balance of power interests” against executive encroachment.
The remedy which springs to mind, impeachment, is clumsy, slow, and requires a supermajority in the Senate to convict.
The passage of explicit budget limiting legislation aimed at defunding the specific disapproved activity (as blandly suggested by John “fuck me?fuckme?fuck” Yoo) is also subject to the supermajority requirements of a veto overide.
On the other hand, what resolution hath wrought, resolution may undo. Thus a simple majority of both houses could resolve that the 9/11 use of force authorization is repealed.
To Debate:
Should Congress pass resolutions in both houses repealing the 9/11 resolution?
If no, how else can they respond to the administration’s extraordinarily broad interpretation of its mandate?
If yes, suppose Bush continued to argue the C in C prerogative as a justification for unfettered executive response to the existence of terrorism anywhere in the world. (Is there any reason to doubt, based upon his behavior so far and his psychology, that he would?) How then should Congress respond?
I’m afraid that there would have to be an allowance to disengage from Iraq on some specified timetable and during that time things wouldn’t change all that much as to GW’s role.
The option of cutting off funding is unrealistic. Congress could make appropriations for Iraq operations valid only for those activities that were related to a withdrawal on the specified timetable.
I can’t think of any good options for Congress even if the Republicans did turn against GW’s operations. In a period of what I regard as borderline panic they stuck their, and our, heads in a noose which it is going to awfully hard to escape.
Impeachment is an undesirable option because Cheney is as hard line as Bush and seems a lot nastier, although that is becoming questionable.
I suspect that if Bush kept forces in Afghanistan the whole mess would find its way to the Supreme Court to decide two main issues. The first being the constitutionality of the War Powers Act and the second to decide whether Congress can cut off funding for a specific military action.
Good question. Congress routinely appropriates money for specific miltary procurements such as money specifically for the Minuteman ICBM. Whether or not they could steer military operations via appropriations is open to question.
Congress does have the power to pass all laws that are necessary and proper to implementing the power granted to it by the Constitution. Since the Congress is charged with the duty of looking after the general welfare, common defence, etc. then maybe they do have the power to require the President to conduct military operations in order to advance their strategic vision. The details would be left up to the President but if Congess says “Do this.” in a law outlinging their strategic vision the President is required by the Constitution to see that that law is faithfully executed(Art. II, Sec. 3).
There were a whole bunch of 9/11 resolutions. I’m unable to find the specific one you refer to.
But the President is also the Commander in Chief of the military. How can you be a CiC and not have the power to tell the military to go there and blow that up? In that sense I don’t see the constitutional basis for Congress to in the first place authorize military action let alone revoke that authorization. Just looking at the powers granted to the respective branches Congress builds the military but the President tells it what to do. Once its built there doesn’t seem to be anything Congress can do to control how its used.
However, that ignores the power granted to congress to declare war. Clearly there is to be some sort of congressional restraint on the President in regards to using the military. To what extent that restraint exists is an issue that has not been addressed. To me its pretty obvious that the War Powers Act is unconstitutional and I think the writers knew it was too. The only reason that it has survived constitutional muster thus far is that no one is inclined to challenge it in court. The act strikes a balance between Congress and the President that everyone is happy with. If one side becomes unhappy with it I believe it would be found unconstitutional and whatever the Supreme Court rules would become the law.
Now, that is what me as an armchair legal analysis says should happen. But what I do think would happen would be something like Marbury vs Madison. Whether the War Powers Act is constitutional or not would effectively be ignored in the ruling. What the ruling would concentrate on is what power Congress ultimately has to control the military. I suspect that in some manner Congress would be given the power to end anything that could be construed as a war but thats just a hunch.
I believe he is referring to the one authorizing force against those responsible for 9/11.
I suspect regiments, both sides, of experienced and high priced lawyers well versed in the Constitution and all of its case law would spend months researching this question. Both would doubtless find what they consider open-and-shut support for their opposing takes on the matter.
I finally found the right resolution. It looks like it all comes down to how you define “force.” If intelligence gathering is considered to be using miltary force then the President can gather intelligence on “persons” who might commit future acts such as those of 9/11.
However, using this “force” on US citizens by the NSA is banned by other laws and if Congress intended that this resolution supecede those laws you would think they would have said so.
I don’t think this resolution needs to be rescinded because I don’t see how it authorized the President to use the NSA to gather such intelligence without using the process outlined by law.
At least I don’t think the resolution needs to be rescinded for that reason. However the resolution itself states that the Constitution authorized the President to “take action” to “deter or prevent” terrorist attacks on the US, so actually the resolution isn’t really necessary, is it? Taking action must mean using all means available and that would include the armed forces as needed. It looks to me like another one of those things done in a rush after 9/11 to make it look like somebody was really doing something. And look what it has brought. More grabbing for power by GW and a divisive argument that we don’t need.