American attack of Iraq ilegal, experts say

[shanek]

http://www.globeandmail.com/servlet/story/RTGAM.20030320.ulaww0320/BNStory/International

The U.S.-led coalition's war against Iraq is illegal, say dozens of Canadian law professors and experts in international law

The U.S. government's legal experts say they find justification in old Security Council resolutions authorizing force to end Iraqi occupation of Kuwait and setting out the terms of the ceasefire after the Persian Gulf war in 1991.

The ceasefire agreement requires Iraq to get rid of its weapons of mass destruction. Iraq's refusal to disarm violates the ceasefire and thus the United States and its allies can resume hostilities, the United States argues.

But this is a fatally flawed argument, said John Currie, a University of Ottawa law school professor and one of the drafters of the letter.

The ceasefire resolution says the Security Council "decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution."

This means the Security Council — not the United States, Britain or other council members acting on their own — must decide on further use of force, Mr. Currie said.

And let's not also forget that since Congress did not declare war against Iraq, it's also illegal according to the US Constitution.

[Troll]

Well with any luck we'll have the civil suit outside of the US.

I know I may be an American and as such some will state bias on my part. But I have always said that if you have a resolution that has a a clause of "serious consequences" then a world body should be smart enough to specify those consequences or take the heat for the various interpretaions of the clause. To simply say "or else", and leave it at that is sheer idiocy.

[rikzilla]

Originally posted by shanek
http://www.globeandmail.com/servlet/story/RTGAM.20030320.ulaww0320/BNStory/International





And let's not also forget that since Congress did not declare war against Iraq, it's also illegal according to the US Constitution.

Wrong again Shane.

From the War Powers Act of 1973
Purpose and Policy

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.



Now bear in mind (2) "Specific Statutory Authorization" :D


Congressional Resolution Authorizing Force Against Iraq

(Oct 15, 2002)

--------------------------------------------------------------------------------
Summary

H.J.Res. 114 authorizes the Use of Military Force Against Iraq. The resolution expresses support for the President's efforts to: (1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions applicable to Iraq; and (2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion, and noncompliance and promptly and strictly complies with all relevant Security Council resolutions.



You're listening to the $hit-house lawyer Shane! If you'd ever been in the Army you'd have known better than to take the word of the $hit-house lawyer!! :D

-z

[shanek]

Originally posted by rikzilla
Wrong again Shane.

If I'm wrong, then why didn't you quote the Constitution?

From Article I Section 8: "The Congress shall have Power...To declare War." Congress. Not the President, Congress. And they aren't given the power to delegate this power.

To show that they meant this, there is this bit from Federalist Paper #69:

First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor. Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies—all which, by the Constitution under consideration, would appertain to the legislature.

(emphasis mine)

And from Federalist #41:

Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.

[rikzilla]

So you're saying that the War Powers Act of 1973 is unconstitutional?

If not then all I can do is re-quote my earlier post.

If so then please explain why this act has not been ruled as unconstitutional lo these last 30 years.....

(crickets chirp) :rolleyes:

[ceo_esq]

Originally posted by shanek
If I'm wrong, then why didn't you quote the Constitution?

From Article I Section 8: "The Congress shall have Power...To declare War." Congress. Not the President, Congress. And they aren't given the power to delegate this power.
Congress can indeed lawfully delegate to the Executive Branch powers reserved to the Legislative Branch in the Constitution. What is more, such delegations, once made, cannot be revoked except through formal legislative action.

The resolution authorizing the use of force in Iraq provides more than enough legal authority to satisfy constitutional requirements. An unbroken line of case law supports this argument, going all the way back to the numerous war powers cases involving the Tonkin Gulf Resolution in the 1960s.

[Kodiak]

Originally posted by shanek
http://www.globeandmail.com/servlet/story/RTGAM.20030320.ulaww0320/BNStory/International





And let's not also forget that since Congress did not declare war against Iraq, it's also illegal according to the US Constitution.

Shanek, you're wrong on this one. The War Powers Act holds up, unless we're currently violating a ratified treaty by invading Iraq (no such treaty exists).

[Saturn]

Originally posted by ceo_esq

The resolution authorizing the use of force in Iraq provides more than enough legal authority to satisfy constitutional requirements. An unbroken line of case law supports this argument, going all the way back to the numerous war powers cases involving the Tonkin Gulf Resolution in the 1960s.

Not exactly. In Orlando v. Laird, the Second Circuit Court of Appeals stated that there must be "mutual participation in the prosecution of war" between the executive branch and Congress. The court found mutual action because, in addition to the resolution itself, Congress passed appropriations bills providing funding for the war and passed leglislation extending the draft.

By contrast, the resolution passed by Congress last October does not require military action against Iraq, Congress has passed no appropriations bills for the war, and there is no draft.

Other challenges that I've heard of have dismissed the plaintiffs for lack of standing. But perhaps you could point me to some other cases.

[pgwenthold]

Originally posted by Kodiak


Shanek, you're wrong on this one. The War Powers Act holds up, unless we're currently violating a ratified treaty by invading Iraq (no such treaty exists).

I agree the WPA holds up, so I see the action by the President to be legal in the US. I haven't seen anyone address the claim that it is against international law, though.

OTOH, I consider the WPA to be one of the stupidest things that congress ever did. Huge mistake. The consitution put the power in the congress for a reason.

[Advocate]

From Lichter v. United States:

A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes. This power is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by Congress.

This is a decision prior to the War Powers Act and IMHO pretty well sums up the opinion of the Court on the Constitutionality of delegation. However there are also more recent decisions that seem to agree that Congress does indeed have the power to delegate its Constitutional authority. See Mistretta v. United States and Touby v. United States.

[Supercharts]

It's time to shoot the Lawyers.

[hgc]

Supercharts:

It's time to shoot the Lawyers.
The usual level of intellectual contribution.

[Michael Redman]

The U.S.-led coalition's war against Iraq is illegal, say dozens of Canadian law professors . . . Well, if Canadian law professors say so . . . :rolleyes:

[DrChinese]

Originally posted by Troll
I know I may be an American and as such some will state bias on my part. But I have always said that if you have a resolution that has a a clause of "serious consequences" then a world body should be smart enough to specify those consequences or take the heat for the various interpretaions of the clause. To simply say "or else", and leave it at that is sheer idiocy.

There is a reason "serious consequences" was used in 1441. It was to allow the Security Council latitude in determining next steps. That didn't happen, since the US acted unilaterally.

And illegally. But who is big enough to stop us? We can get away with doing whatever we want. The end justifies the means. If you think Cowboy George is bad now, wait until Act III.

[shanek]

Originally posted by rikzilla
So you're saying that the War Powers Act of 1973 is unconstitutional?

If not then all I can do is re-quote my earlier post.

If so then please explain why this act has not been ruled as unconstitutional lo these last 30 years.....

It doesn't work that way. YOU are the one who is claiming that the War Powers Act gives them that power and that it is consistent with the Constitution. Support that in light of the quotes I gave above, which state quite clearly that the President does not and should not have that power.

(crickets chirp) :rolleyes:

Again with your crickets, in the same post no less! You have zero integrity. You're just a sad small-minded man who cares more about "winning" than about actually making an argument.

Answer straight: How is this power not unconstitutional in light of the quotes I gave above?

[shanek]

Originally posted by ceo_esq

Congress can indeed lawfully delegate to the Executive Branch powers reserved to the Legislative Branch in the Constitution.

That's not what the guys who wrote it said.

The resolution authorizing the use of force in Iraq provides more than enough legal authority to satisfy constitutional requirements.

The Constitution does not say "Congress has the power to authorize the use of force." It says, "Congress has the power to declare war." This is plain English! What about it don't people understand?

An unbroken line of case law supports this argument, going all the way back to the numerous war powers cases involving the Tonkin Gulf Resolution in the 1960s.

And why should that be given greater consideration than the words of the men who wrote a part of the Constitution that remains unamended and unrepealed? Are you saying that any law that's been in place for 30+ years is automatically considered Constitutional?

[shanek]

Originally posted by Kodiak


Shanek, you're wrong on this one. The War Powers Act holds up, unless we're currently violating a ratified treaty by invading Iraq (no such treaty exists).

Where does the Constitution say this, and how do you reconcile it with the quotes I gave above?

[shanek]

Originally posted by pgwenthold


I agree the WPA holds up, so I see the action by the President to be legal in the US. I haven't seen anyone address the claim that it is against international law, though.

OTOH, I consider the WPA to be one of the stupidest things that congress ever did. Huge mistake. The consitution put the power in the congress for a reason.

Well, if you agree that the Constitution put the power in the hands of Congress, and the WPA changed that, and the Constitution was not changed to allow it, then how can the WPA be constitutional?

[Advocate]

Originally posted by shanek


Well, if you agree that the Constitution put the power in the hands of Congress, and the WPA changed that, and the Constitution was not changed to allow it, then how can the WPA be constitutional?

The WPA did not change that. It was a delegation of power by Congress. The Constitution does not say that Congress can not delegate the authority. In several cases concerning delegation of authority, the Supreme Court has ruled that Congress can do so. It would seem to me that makes the law constitutional, or at least not unconstitutional on that particular grounds. Of course the court may rule otherwise, but unless/until they do, I see no reason to consider it unconstitutional.

[hgc]

This is a very interesting debate.

It's unequivocally true that only Congress can declare war. So what's the question here? Is a declaration of war necessary in order for the President to embark on military campaigns?

You can fathom the intent of the framers all you want on this quesiton, but until the federal courts say otherwise, the law (WPA) stands as is. It's kind of like how you determine the value of an object. You can't until you have a transaction. Then you know what someone paid for that object. With a statute, you don't know that it's not constitutional until the courts declare it so. You may have an opinion that it's not constitutional, but that carries about as much weight under the law as what you think about OJ's guilt.

Personally, I think Congress should revisit this law and attempt to take back their perogative. It would most likely have to overcome a Presidential veto though, since what president would give it up?

[Saturn]

Originally posted by Advocate

The Constitution does not say that Congress can not delegate the authority.

No offense, but this statement is ridiculous. Do you believe that Congress can delegate its war-making power to the Supreme Court, or to you as an individual? Or do you believe Congress could delegate its legislative power to the President, allowing him to rule by decree? After all, there's nothing that specifically says it can't.


In several cases concerning delegation of authority, the Supreme Court has ruled that Congress can do so.

In narrow circumstances, mostly involving administrative agencies charged with complex tasks that would be exceptionally difficult to provide for in a statute. But even there there must be guidelines and oversight. Congress can delegate to the FAA a certain leeway in establishing regulations for air travel; it can't pass a valid law stating the FAA may regulate air travel "as it sees fit."

I'll admit that the courts have been very lax in defending Congress' sole power to declare war, but I haven't seen any case that would allow a delegation with nothing more than a resoultion stating that he may take military action that he sees fit. And if the Supreme Court did rule that way, I would consider it a decision at least as bad as Plessy v. Ferguson, if not Dred Scot v. Sanford.

[Saturn]

By the way, the section of the War Powers Act mentioned above is not binding law; rather, it is precatory language. You'll notice it is under the "Purpose and Policy" section of the statute - that section indicates the reasons for the law, but sets forth no actual requirements. Also, you should know that the current President has no respect for the War Powers Act - he has repeatedly stated that the Consitution allows him to use the military for whatever purpose he deems necessary, even against the will of Congress.

[Skeptic]

You seem not to understand the role of professors in determining policy.

As Eric Hoffer said in "The True Believer", professors and intellectuals are what he called "men of words"--theorists who like to build noble ideas. There is, of course, nothing wrong with that, and I am not saying it is unimportant. The problem is that it has its place--academia.

But many "men of words" aren't satisfied with this role. The "men of words" have a tendency to feel powerless in a society, like that in the U.S. and Canada, that is dominated by "men of action"--e.g., politicians and businessmen, who have a tendency to simply ignore academia in their decisions.

The result is usually what we see here: since words have no effect, the "men of words" believe that harsher, more "serious" words (like declaring the war "illegal") will have some effect. It won't. Bush and the other men of action will simply ignore what they say.

And quite rightly so, by the way--history repeatedly shows that when "men of words", by some fluke, DO become "men of action" and try out their social theories in the real world, disaster usually quickly follows.

[Scorpy]

The Constitution gives the power to declare war to Congress and only to Congress. It seems to me that for Congress to 'delegate' that power to another branch of governement it would be illegally amending the Constitution's delegation of that power.

[NoZed Avenger]

Originally posted by Saturn
By the way, the section of the War Powers Act mentioned above is not binding law; rather, it is precatory language. You'll notice it is under the "Purpose and Policy" section of the statute - that section indicates the reasons for the law, but sets forth no actual requirements. Also, you should know that the current President has no respect for the War Powers Act - he has repeatedly stated that the Consitution allows him to use the military for whatever purpose he deems necessary, even against the will of Congress.

As he has repeatedly stated this, I am sure you will have no problem in citing to 2 or 3 quotes that say this?

NA

[shanek]

Originally posted by Advocate
The WPA did not change that. It was a delegation of power by Congress. The Constitution does not say that Congress can not delegate the authority.

It doesn't say Congress can, and if it's not in the Constitution it isn't a power of government. And again, I point you to the above quotes which make it clear that they didn't want the President to yield such power, whether delegated by Congress or not.

[shanek]

Here's a good question for all of you: If Congress can pass a resolution authorizing the President to use force, and can work now to pass a resolution supporting the actions of our President, why won't they just declare war?

[John Bryce]

On The Current Anna Maria Tremonti asks if a U.S. war with Iraq is permitted under international law.
Part One, Craig Scott of Osgoode Hall and Ed Morgan of the University of Toronto debate the issue.
Real Audio runs 14:33

CBC Radio (http://www.cbc.ca/news/iraq/issues_analysis/)

I have not had a chance to listen to the program, but perhaps people here would be interested in listening to it.

Click on the CBC Radio (http://www.cbc.ca/news/iraq/issues_analysis/) link, and scroll down until you see what I have quoted above. You will need Real Player (http://www.real.com/player) to hear the audio.

[Jim Lennox]

1441 made no mention of war. Nor did any of the other resolutions which the UN have passed against Iraq. The UN is about peace. To claim that the US is carrying out the will of the UN is misleading to say the least.

[Supercharts]

Is it at all possible to discuss Saddam's "Illegal" rule of Iraq? [Just wondering...]

[Jim Lennox]

"He's broken the law, so we can too?"

Is that what you meant?

[ssibal]

Originally posted by shanek
Here's a good question for all of you: If Congress can pass a resolution authorizing the President to use force, and can work now to pass a resolution supporting the actions of our President, why won't they just declare war?

Maybe because the days of formally declaring war are over?

[ssibal]

The president is supposed to be Commander in Chief of the military under the Constitution, which I assume would entail the power to send troops into combat. What good is being commander if you cannot command your forces?

[Jim Lennox]

"If the Security Council mean to authorize force they will do so using clear words; it's the phrase ‘all necessary means'. Now, the UK and the US thought about including that phrase in resolution 1441 in November, and again in this draft, and they backed off on both occasions, because they know they would not get an authorization passed by the Security Council."

Link (http://www.rnw.nl/hotspots/html/uk030305.html)

Even without 1441, President George W. Bush has said, the U.S. had authority from resolutions authorizing and then ending the 1991 Gulf War.

Glennon calls that argument ``a real stretch.'' The resolutions themselves say that a breach cannot by itself re- activate the 1990 resolution authorizing use of force. That has to be done by the Security Council, he says.

So how about this argument: the attack is legal because it's being waged in self-defense, so no UN approval's required.

The problem is the U.S. is neither under attack nor in imminent danger of attack. The Bush administration has to redefine self-defense to make its case. It does so by citing the dangerousness of the times.

Link (http://bloomberg.com/feature/feature1048256471.html)

[prettygirlsmakegrave]

Well... Bush did promise that no war crime would go unpunished. :rolleyes:

[Scorpy]

Originally posted by ssibal
The president is supposed to be Commander in Chief of the military under the Constitution, which I assume would entail the power to send troops into combat. What good is being commander if you cannot command your forces?

The president can order troops into combat, and he can command U.S. forces, but Congress has to declare war first.

[ssibal]

Originally posted by Scorpy


The president can order troops into combat, and he can command U.S. forces, but Congress has to declare war first.

The Constitution does not say that, which is why the War Powers Act was passed.

[shanek]

Originally posted by ssibal


Maybe because the days of formally declaring war are over?

When was the part of the Constitution requiring it repealed?

[shanek]

Originally posted by ssibal
The president is supposed to be Commander in Chief of the military under the Constitution, which I assume would entail the power to send troops into combat.

Only after being authorized to do so by a Declaration of War passed by Congress. Read my above quotes.

[shanek]

Originally posted by ssibal


The Constitution does not say that, which is why the War Powers Act was passed.

If the Constitution doesn't say that, then the proper procedure is to amend the Constitution. Without that, that authorization is, by definition, unconstitutional.

[Scorpy]

Originally posted by ssibal


The Constitution does not say that, which is why the War Powers Act was passed.

If the Constitution doesn't say that, then the War Powers Act is superfluous.

[Roadtoad]

With my computer on the fritz, it's a little hard to check on the links on this argument. But, Shanek makes a strong point: there are reasons for the separation of powers, which prevents the U.S. from becoming a totalitarian regime.

I suspect the notion of the U.S. being beyond the days of formally declaring war is more of a cute one liner than a statement of fact, but I may well be wrong, and the statement could be more a sense of realpolitik than anything else. Part and parcel of any war declaration is the justification for the request. Bush and Cheney have been playing this one close to the vest, and we still don't have as much information as I'd like to see regarding the whys and wherefores of this fight. (Personally, I'd rather see a formal declaration with an ironclad reason for the fight.)

I strongly believe that, yes, Hussein has WMDs in his possession. I believe strongly that he supports terrorists. I believe strongly that he has harbored terrorists, and provided them funds and weapons. But, if I were the one asking men and women to die, I would want to have more than a strong belief. I want to know what Bush knows.

[shanek]

Originally posted by Roadtoad
I suspect the notion of the U.S. being beyond the days of formally declaring war is more of a cute one liner than a statement of fact, but I may well be wrong, and the statement could be more a sense of realpolitik than anything else.

Well, considering that Congress hasn't declared war since Dec. 8, 1941, it would appear that it's true in reality regardless of what the Constitution says. The same can be said for any number of other government actions, too.

[Advocate]

Originally posted by shanek


It doesn't say Congress can, and if it's not in the Constitution it isn't a power of government. And again, I point you to the above quotes which make it clear that they didn't want the President to yield such power, whether delegated by Congress or not.

The Supreme Court seems to disagree with you there. They have ruled in favor of Congress being able to delegate multiple powers to others. I mentioned some of the cases earlier but there are many more, and some of them specifically mention war powers. There are quite a few cases that would lead one to believe that even if the constitutionality of the War Powers Act was brought to the Supreme Court it would likely be upheld. Any court is never 100% certain to do anything, but I think it very unlikely that they would find the WPA unconstitutional.

[davefoc]

A condition for the cease fire after the first gulf war was that Iraq would destroy weapons of mass destruction and not make any more.

If Iraq substantively violated this condition, then the allies have an absolute right to reinvade and end the regime of the rulers that were following a path of non-compliance. Whether some folks amusing themselves by interpreting something called international law think so or not is irrelevant It is justified by the common sense notion of the need for self protection.

It might also be argued that the allies have a moral duty to remove a brutal murderous regime that the allies left in power for political reasons after the first gulf war.

This is not to say that I am arguing that the invasion of Iraq was correct. This facts that would allow for a reliable judgment on this issue are almost totally unknown at this time by the general public and may never be known well enough to allow for an absolute answer.

[Ben Shniper]

Originally posted by davefoc

This is not to say that I am arguing that the invasion of Iraq was correct. This facts that would allow for a reliable judgment on this issue are almost totally unknown at this time by the general public and may never be known well enough to allow for an absolute answer.

I think it's very simple:

EVERYTHING is illegal under international law. Just look at Israel. Sharon can't sneeze without twenty people suing him in Belgium about the war crimes committed by sneezing against the "powerless" and "victimized" Palestinians.

However, only some international laws get enforced. India killed tens of thousands, Sudan killed millions. Yet the international laws that were clearly violated never resulted in a single UN resolution in these important cases. Israel is a special case, with several special UN offices set up to manage it (UNRWA, specifically devoted to helping refugees from Palestine, has been active for 50 years longer than its mandate, to feed Palestinians refugees, and their children, and children's children). Not a single Palestinian crime has been prosecuted and/or stopped by the UN, nor will one ever be, no matter how horrible these crimes become.

Now they go after Bush. Like clown cops they stop Bush at a green light. They ignore the rules they broke in Bosnia, which never got UN Security Council approval. They sweep under the rug Saddam's crimes and their business connections to him (Russia and France recently got sweet oil deals with that nasty-wasty Saddam. Evil Bush wants Iraq's oil, right?). Now who is distorting reality?

-Ben

[shanek]

Originally posted by Advocate


The Supreme Court seems to disagree with you there.

The Supreme Court has made numerous bad rulings in the past which have been determined by later courts to be unconstitutional. I honestly don't know why you people keep trotting out this pathetic appeal to the Supreme Court while completely ignoring my DOCUMENTED HISTORICAL EVIDENCE that the framers meant something different entirely.

[Advocate]

Originally posted by shanek


The Supreme Court has made numerous bad rulings in the past which have been determined by later courts to be unconstitutional. I honestly don't know why you people keep trotting out this pathetic appeal to the Supreme Court while completely ignoring my DOCUMENTED HISTORICAL EVIDENCE that the framers meant something different entirely.

Because that same Constitution establishes that Supreme Court's authority to make that determination.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

[shanek]

Originally posted by Advocate
Because that same Constitution establishes that Supreme Court's authority to make that determination.

The Constitution does no such thing. It charges the Supreme Court to strike down unconstitutional laws. It DOES NOT give them the power to allow a law exercising a power not authorized by the Constitution.

[Scorpy]

Originally posted by Advocate


Because that same Constitution establishes that Supreme Court's authority to make that determination.



Actually, it was the Supreme Court's own ruling in Marbury vs. Madison that established its authority to make that determination.

[ssibal]

Originally posted by shanek


When was the part of the Constitution requiring it repealed?

You are assuming the Constitution requires a declaration of war for any military action.

[ssibal]

Originally posted by shanek


Only after being authorized to do so by a Declaration of War passed by Congress. Read my above quotes.

Aside from the fact that the Federalist Papers are not legally binding, your quote does not state that the president can only act after a declaration of war has been passed by Congress.

[ssibal]

Originally posted by shanek


If the Constitution doesn't say that, then the proper procedure is to amend the Constitution. Without that, that authorization is, by definition, unconstitutional.

Are you saying that all Acts are unconstitutional or just the War Powers Act? Regardless, if that is the case then it will be deemed so by the Supreme Court. As of yet, it is not.

[Advocate]

Originally posted by shanek


The Constitution does no such thing. It charges the Supreme Court to strike down unconstitutional laws. It DOES NOT give them the power to allow a law exercising a power not authorized by the Constitution.

I never said it did. What I said was that the Supreme Court has the authority to determine whether or not any law violates the Constitution. Since it has had ample opportunity to determine that Congress could not delegate its authority and it has declined to do so, we must conclude that this delegation is NOT forbidden. Even the strict constructionists like Scalia have said that in order to fulfill its constitutionally mandated functions, sometimes Congress must delegate its authority. Could it be that your interpretation of the Constitution is flawed?

[shanek]

Originally posted by ssibal


You are assuming the Constitution requires a declaration of war for any military action.

Any military action that is not a direct response to an attack against the US, yes. As I have supported several times.

[shanek]

Originally posted by ssibal
Aside from the fact that the Federalist Papers are not legally binding,

Oh, GIVE ME A FSCKING BREAK!!!!

"WAAAAAH!!!! They aren't legally binding!!!! WAAAAAH!!!!"

They EXPLAIN THE ORIGINAL INTENT OF THE CONSTITUTION!!! THEY WERE WRITTEN BY THE SAME PEOPLE THAT WROTE THE CONTSTITUTION TO EXPLAIN WHAT THEY MEANT!!!!!

Sheesh....That drivel p*sses me off every time! Go stick your fscking head in the sand....

[shanek]

Originally posted by ssibal
Are you saying that all Acts are unconstitutional or just the War Powers Act?

Acts are supposed to be the methods behind how the Federal government exercises their powers granted to them by the Constitution. Any Act which gives them a new power not mentioned in the Constitution is, by definition, unconstitutional.

[shanek]

Originally posted by Advocate
I never said it did. What I said was that the Supreme Court has the authority to determine whether or not any law violates the Constitution.

The Supreme Court is not the only body that's supposed to follow the Constitution. You people are making out like Congress and the President can do whatever they want and it's fine as long as the Supreme Court doesn't overturn it. That is complete bullsh!t. Why do you think members of Congress and the President swear an oath to the Constitution? An oath that they flagrantly and routinely violate?

Could it be that your interpretation of the Constitution is flawed?

It's not my interpretation! It's the "interpretation" of both the PLAIN LANGUAGE of the Constitution and THE MEN THAT WROTE IT!!!

[Advocate]

Originally posted by shanek


The Supreme Court is not the only body that's supposed to follow the Constitution. You people are making out like Congress and the President can do whatever they want and it's fine as long as the Supreme Court doesn't overturn it. That is complete bullsh!t. Why do you think members of Congress and the President swear an oath to the Constitution? An oath that they flagrantly and routinely violate?

It's called checks and balances. The Congress should not pass legislation that violates the Constitution, nor should the President sign it. However, if they do it is the responsibility of the Supreme Court to overturn it. So in order for an unconstitutional act to pass and be retained all three branches must agree to it. Presumably this is what you are saying has happened. If this is indeed the case, then the only recourse is for the people to elect new representatives who will see things differently.

However, I agree with the court that in order to fulfill its constitutionally mandated functions, Congress must delegate some of its authority, just as both the other branches do. The functions of Congress are spelled out in the Constitution. Like the court, I believe that the Congress has the authority necessary to carry out the functions it is charged with and in some cases this requires delegation. That said, if Congress can delegate any of its functions, how can it be able to delegate some but not others? It is this situation that caused the Supreme Court to take up the issue of delegation in the first place and come to the conclusions that it did. You can disagree with where it drew that line, but if you hold that Congress cannot delegate any functions then you end up in a situation where it cannot do the job it is charged with.

It's not my interpretation! It's the "interpretation" of both the PLAIN LANGUAGE of the Constitution and THE MEN THAT WROTE IT!!!

But the duties of Congress are also spelled out in plain language and the Supreme Court determined (and I agree with them) that the Congress can do things not specifically stated in the Constitution in order to perform the functions it is specifically given there. Note that this does NOT give it the ability to violate the 10th amendment. Basically the reasoning is that delegation is not specifically forbidden and is necessary in order to perform certain functions that are specifically given, so therefore is allowed.

[ssibal]

Originally posted by shanek


Any military action that is not a direct response to an attack against the US, yes. As I have supported several times.

But you have not supported that. Even your quote from the Federalist Papers does not state that the president can only act after a declaration of war has been passed by Congress or in direct response to an attack against the U.S..

[ssibal]

Originally posted by shanek


Acts are supposed to be the methods behind how the Federal government exercises their powers granted to them by the Constitution. Any Act which gives them a new power not mentioned in the Constitution is, by definition, unconstitutional.

The way I see it, the War Powers Act is not giving any new powers. It is restricting and setting specific guidlines for the president's power as Commander in Chief.

[shanek]

Originally posted by Advocate
It's called checks and balances. The Congress should not pass legislation that violates the Constitution, nor should the President sign it. However, if they do it is the responsibility of the Supreme Court to overturn it.

Of course, but that's not the views that are being espoused here! The claim here is that any law, regardless of whether or not it's allowed in the Constitution, is A-OK as long as the Supreme Court doesn't overturn it!

That said, if Congress can delegate any of its functions, how can it be able to delegate some but not others?

Congress can delegate its functions to, say, committies made up of members of its own branch. That's not even anywhere close to delegating it to the president.

But the duties of Congress are also spelled out in plain language and the Supreme Court determined (and I agree with them) that the Congress can do things not specifically stated in the Constitution in order to perform the functions it is specifically given there.

The difference is, there, it's still Congress performing the functions, albeit indirectly. What's happening here is that the function is being completely turned over to the President.

[shanek]

Originally posted by ssibal


But you have not supported that. Even your quote from the Federalist Papers does not state that the president can only act after a declaration of war has been passed by Congress or in direct response to an attack against the U.S..

THE CONSTITUTION SAYS THAT!!!!!! :rolleyes:

[shanek]

Originally posted by ssibal
The way I see it, the War Powers Act is not giving any new powers.

Okay, fine; what gave Congress this power before the War Powers Act, and how is that Constitutional?

[Scorpy]

However, I agree with the court that in order to fulfill its constitutionally mandated functions, Congress must delegate some of its authority, just as both the other branches do. The functions of Congress are spelled out in the Constitution. Like the court, I believe that the Congress has the authority necessary to carry out the functions it is charged with and in some cases this requires delegation. That said, if Congress can delegate any of its functions, how can it be able to delegate some but not others? It is this situation that caused the Supreme Court to take up the issue of delegation in the first place and come to the conclusions that it did. You can disagree with where it drew that line, but if you hold that Congress cannot delegate any functions then you end up in a situation where it cannot do the job it is charged with.


Its one thing for the Congress to delegate its authority to a department/agency that it has created in order to fulfill its Constitutionally defined responsibilities, but its a completely different matter when it delegates its authority to another branch of government.

The Constitution clearly defines the functions of each branch of government. When Congress delegates its power to the Executive branch, it's over-riding the constitutionally defined limits of that branch.

In essence, its not just the Congress that's violating the Constitution by delegating its authority to the President, it's also the President for having accepted that authority.

[Kodiak]

Originally posted by shanek


The Supreme Court has made numerous bad rulings in the past which have been determined by later courts to be unconstitutional. I honestly don't know why you people keep trotting out this pathetic appeal to the Supreme Court while completely ignoring my DOCUMENTED HISTORICAL EVIDENCE that the framers meant something different entirely.

So is the Miranda warning unconstitutional also?

It isn't in the constitution and the framers never discussed it...

[NoZed Avenger]

Originally posted by Scorpy



Its one thing for the Congress to delegate its authority to a department/agency that it has created in order to fulfill its Constitutionally defined responsibilities, but its a completely different matter when it delegates its authority to another branch of government.


This would also necessarily invalidate the delegation of authority to any executive agency, and would invalidate all federal regulations, as well as mandate the dissolution of the Federal Reserve.

There are good arguments in favor of this line of reasoning. But this does not single out the War Powers Act. And, of course, challenges of this type have also faile in court. While the decisions may well be incorrect, are we faulting Congress and the President for following what the Supreme Court has declared to be the law? Are they free to disregard it on other matters, as well?

While I think that the arguments against this type of delegation have merit, announcing that it is "clearly" wrong or unconstitutional does not seem to move the ball forward much.

Now what, in other words?

NA

[shanek]

Originally posted by Kodiak
So is the Miranda warning unconstitutional also?

It isn't in the constitution and the framers never discussed it...

That is so pathetic of you, Kodiak! I thought better of you. Miranda is the government informing suspects whom they have arrested of their Constitutional rights. The effect has been to cut down on police interrogating and gaining involuntary confessions and denying suspects the right of legal counsel for fear of the suspect being released after the confession or the arrest was determined ot be improper because of the infringements of the suspect's rights. The government certainly has the power and mandate to protect the Constitutional rights of its citizens!

[shanek]

Originally posted by NoZed Avenger
This would also necessarily invalidate the delegation of authority to any executive agency, and would invalidate all federal regulations, as well as mandate the dissolution of the Federal Reserve.

Well, delegations of Presidential authority could be given to an executive agency since the President is head of the Executive branch. But other than that, you're right; those are all breaches of the Constitutional limitations of the Federal government.

There are good arguments in favor of this line of reasoning. But this does not single out the War Powers Act.

I never said it did. I'm refuting those who cling to the WPA supporting that the President has the power to wage war without a declaration from Congress.

And, of course, challenges of this type have also faile in court. While the decisions may well be incorrect, are we faulting Congress and the President for following what the Supreme Court has declared to be the law?

Yes. They swore an oath to uphold the Constitution. They don't get off the hook just because the courts failed in their duty as well.

Now what, in other words?

We have to make the government obey the Constitution again.

Sometimes, I find myself in agreement with you, shanek.

We have to make the government obey the Constitution again.

We have to make the government obey the Constitution again.

We have to make the government obey the Constitution again.

We have to make the government obey the Constitution again.


Yes yes yes.

[Jocko]

Originally posted by Estimated Prophet
Sometimes, I find myself in agreement with you, shanek.

We have to make the government obey the Constitution again.

We have to make the government obey the Constitution again.

We have to make the government obey the Constitution again.

We have to make the government obey the Constitution again.


Yes yes yes.


That'll never catch on. It needs to rhyme or have a good meter, preferably along the lines of:

"Two, four six eight! [something something rhyming with eight]!"

or:

"What do we want? [something]! When do we want it? Now!"

Someday I'm going to make a million writing new chants for hippies. They really need a new act.

Maybe...

"Get congress to obey the constitution again,
Or we'll mandate that every movie must star Sean Penn!"

[Andalyn]

Originally posted by shanek


That is so pathetic of you, Kodiak! I thought better of you. Miranda is the government informing suspects whom they have arrested of their Constitutional rights. The effect has been to cut down on police interrogating and gaining involuntary confessions and denying suspects the right of legal counsel for fear of the suspect being released after the confession or the arrest was determined ot be improper because of the infringements of the suspect's rights. The government certainly has the power and mandate to protect the Constitutional rights of its citizens!

We know what the Miranda does, but how can it be required?

Under your argument, requiring the Miranda warning to be given to an arrestee before questioning oversteps the authority given by the Constitution.

Certainly, the Constitution guarantees the rights in Miranda, but never requires that they be read to an arrestee.

How can it be required?

[shanek]

Originally posted by Andalyn


We know what the Miranda does, but how can it be required?

Under your argument, requiring the Miranda warning to be given to an arrestee before questioning oversteps the authority given by the Constitution.

Certainly, the Constitution guarantees the rights in Miranda, but never requires that they be read to an arrestee.

How can it be required?

Because you're talking about a procedure followed by government agents. Just like the Post Office can set policies regarding its employees. The alternative is to not allow any statements taken by police in a custodial interrogation to be admissible. It doesn't confer any additional powers to the government over the people; it places restrictions on government agents in order to protect the rights of the people.

Originally posted by Jocko


"Get congress to obey the constitution again,
Or we'll mandate that every movie must star Sean Penn!"

Don't believe we've exchanged words before, Jocko...

This is hilarious! So Simpsonesque... got any more, maybe start a thread about coming up with new slogans and image-consciousness for hippies? :D

[NoZed Avenger]

Originally posted by shanek


Well, delegations of Presidential authority could be given to an executive agency since the President is head of the Executive branch. But other than that, you're right; those are all breaches of the Constitutional limitations of the Federal government.


Executive authority -- if it is given to someone that may be discharged by the President at will. That covers several executive agencies, but would certainly not protect any agency that purports to pass regulations, i.e., essentially make federal law.

And as the Federal Reserve serves set terms and the members cannot be removed at will, its existence seems to disregard limitations set down in a number of interpretations of the Constitution. [not a disagreement with what you are saying -- just filling in some gaps for people following the thread]


I never said it did. I'm refuting those who cling to the WPA supporting that the President has the power to wage war without a declaration from Congress.

Fair enough -- but I was not trying to argue you were making that claim, just noting that a huge number of federal agencies and quite a bit of "regulatory law" would have to be struck down, as well. I am not saying that would be a bad thing by any means, just noting it.


Yes. They swore an oath to uphold the Constitution. They don't get off the hook just because the courts failed in their duty as well.


To a large extent I agree with this sentiment, but the idea of the supreme court as final arbiter of the constitution has been so ingrained for so long that I see some mitigation for them -- also, (politcal) cowardice and self-interest enters into it, so the mitigation is not anywhere near total.


We have to make the government obey the Constitution again.

I was hoping for something more concrete, but I guess that is a bit unfair of me -- I was not clear in my question. I am assuming that you advocate that the voters begin to hold their representatives accountable?

NA

edited to add: The first thing I wish we/they would do is reign in the commerce clause expansion of government and the financial extortion of the federal government over state laws: "Pass this legislation or we won't give you your citizens' tax money back for roads."

[loCAtek]

Link to War Powers Resolution: Presidential Compliance
(http://www.fas.org/man/crs/81-050.htm) States the legal specifics;Within the Us -

Under the Constitution, war powers are divided. Congress has the power to declare war and raise and support the armed forces (Article I, Section 8), while the President is Commander in Chief (Article II, Section 2). It is generally agreed that the Commander in Chief role gives the President power to repel attacks against the United States and makes him responsible for leading the armed forces. During the Korean and Vietnam wars, the United States found itself involved for many years in undeclared wars. Many Members of Congress became concerned with the erosion of congressional authority to decide when the United States should become involved in a war or the use of armed forces that might lead to war. On November 7, 1973, Congress passed the War Powers Resolution (P.L. 93-148) over the veto of President Nixon.

The War Powers Resolution states that the President's powers as Commander-in-Chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces. It requires the President in every possible instance to consult with Congress before introducing American armed forces into hostilities or imminent hostilities unless there has been a declaration of war or other specific congressional authorization. It also requires the President to report to Congress any introduction of forces into hostilities or imminent hostilities, Section 4(a)(1); into foreign territory while equipped for combat, Section 4(a)(2); or in numbers which substantially enlarge U.S. forces equipped for combat already in a foreign nation, Section 4(a)(3). Once a report is submitted "or required to be submitted" under Section 4(a)(1), Congress must authorize the use of forces within 60 to 90 days or the forces must be withdrawn. (For additional information, see CRS Report 96-476, The War Powers Resolution: Twenty-Two Years of Experience.)


We knew this, what is different today;United Nations Actions
U.N. Security Council resolutions provide authority for U.S. action under international law. Whether congressional authorization is required under domestic law depends on the types of U.N. action and is governed by the U.N. Participation Act (P.L. 79-264, as amended), as well as by the War Powers Resolution and war powers under the Constitution. Section 8(b) of the War Powers Resolution exempts only participation in headquarters operations of joint military commands established prior to 1973.

For armed actions under Articles 42 and 43 of the U.N. Charter, Section 6 of the U.N. Participation Act authorizes the President to negotiate special agreements with the Security Council, subject to the approval of Congress [Which was granted], providing for the numbers and types of armed forces and facilities to be made available to the Security Council. Once the agreements have been concluded, further congressional authorization is not necessary, but no such agreements have been concluded.

Therefore, when the Security Council voted on resolution 1441, they agreed by international law (and the two other resolutions passed before and after the 1991 Gulf War) that any UN member could enact 'serious consequences' on Iraq.

[shanek]

Originally posted by NoZed Avenger
Executive authority -- if it is given to someone that may be discharged by the President at will. That covers several executive agencies, but would certainly not protect any agency that purports to pass regulations, i.e., essentially make federal law.

And as the Federal Reserve serves set terms and the members cannot be removed at will, its existence seems to disregard limitations set down in a number of interpretations of the Constitution. [not a disagreement with what you are saying -- just filling in some gaps for people following the thread]

Oh, I understand, and I agree with the above.

Fair enough -- but I was not trying to argue you were making that claim, just noting that a huge number of federal agencies and quite a bit of "regulatory law" would have to be struck down, as well. I am not saying that would be a bad thing by any means, just noting it.

Okay.

To a large extent I agree with this sentiment, but the idea of the supreme court as final arbiter of the constitution has been so ingrained for so long that I see some mitigation for them -- also, (politcal) cowardice and self-interest enters into it, so the mitigation is not anywhere near total.

I can agree with that. Since they're the last resort, they have to take their duty very seriously. But let's not forget that it takes literally years to get heard by the Supreme Court (and they don't even hear all of them), so relying on them to protect the Constitution is imperfect at best.

I was hoping for something more concrete, but I guess that is a bit unfair of me -- I was not clear in my question. I am assuming that you advocate that the voters begin to hold their representatives accountable?

Absolutely. We should elect politicians dedicated to protecting the Constitution.

edited to add: The first thing I wish we/they would do is reign in the commerce clause expansion of government and the financial extortion of the federal government over state laws: "Pass this legislation or we won't give you your citizens' tax money back for roads."

Yeah, the commerce clause is made to excuse a lot of unconstitutional functions it was never intended to give. The commerce clause is there solely to prevent states from restricting or imposing duties or taxes on goods imported from other states. You'll note that not only is the commerce clause being used to excuse things it was never meant to cover, it's not being used the way it was intended. Some states are charging sales tax now for out-of-state purchases, and here in NC I can't get a mortgage from any bank that doesn't have a physical presence in NC; both of those are clear violations of the commerce clause.

[shanek]

Originally posted by loCAtek
Link to War Powers Resolution: Presidential Compliance
(http://www.fas.org/man/crs/81-050.htm) States the legal specifics;

The War Powers Resolution states that the President's powers as Commander-in-Chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces.

Unfortunately, only the first and third items are covered under the Constitution. It's apparently #2 that's allowing the abuse.

[NoZed Avenger]

A quick note:

Originally posted by shanek


Yeah, the commerce clause is made to excuse a lot of unconstitutional functions it was never intended to give. The commerce clause is there solely to prevent states from restricting or imposing duties or taxes on goods imported from other states. You'll note that not only is the commerce clause being used to excuse things it was never meant to cover, it's not being used the way it was intended. Some states are charging sales tax now for out-of-state purchases, and here in NC I can't get a mortgage from any bank that doesn't have a physical presence in NC; both of those are clear violations of the commerce clause.

Precisely -- in fact, the Federalist Papers expressly denied that the clause would have this sort of effect when the language was challenged by the "anti-federalists" of the day, which makes it exceptionally maddening.

Later, in trying to stamp out discrimination, then Supreme Court expanded federal power under this clause in an effect to encompass more and more territory within federal jurisdiction because of the failure of the states to move fast enough toward the end of discrimination. The ends were good, but the means have proved pernicious.

NA

[Kodiak]

Originally posted by shanek


That is so pathetic of you, Kodiak! I thought better of you.

Don't get so huffy, Shanny! I was not leading you. It was a sincere question! The constitution doesn't instruct the State to ensure that suspects are informed of their rights before arrest.

Doesn't the Legislature have the power and mandate to give the President "war powers" if they (and, it just so happens, the Supreme Court) think that such a delegation is the best way to protect the Constitutional rights of American citizens?

[shanek]

Originally posted by Kodiak
Don't get so huffy, Shanny! I was not leading you. It was a sincere question! The constitution doesn't instruct the State to ensure that suspects are informed of their rights before arrest.

It instructs that the rights are to be protected. This is one way of doing so.

[Kodiak]

Originally posted by shanek


It instructs that the rights are to be protected. This is one way of doing so.

I'll ask it again:

Using your own reasoning, doesn't the Legislature have the power and mandate to give the President "war powers" if they (and, it just so happens, the Supreme Court) think that such a delegation is the best way to protect the Constitutional rights of American citizens?

[shanek]

Originally posted by Kodiak
Using your own reasoning, doesn't the Legislature have the power and mandate to give the President "war powers" if they (and, it just so happens, the Supreme Court) think that such a delegation is the best way to protect the Constitutional rights of American citizens?

There is all the difference in the world between a branch of government enforcing the Constitution in its own structure and one branch giving its power to another branch. The two situations are not in any way comparable.

[Kodiak]

Originally posted by shanek


There is all the difference in the world between a branch of government enforcing the Constitution in its own structure and one branch giving its power to another branch. The two situations are not in any way comparable.

Really? I don't see it...

From Article 1, Section 8 of the U.S. Constitution:

The Congress shall have power:

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.



From Article 2, Section 2 of the U.S. Constitution:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;


Where does it say such voluntary delegation of the "execution of powers", as laid out in the 1973 War Powers Act, is unconstitutional?

It seems to me that the Congress is clearly acting in accordance with the Constitution.

[shanek]

Originally posted by Kodiak
It seems to me that the Congress is clearly acting in accordance with the Constitution.

Then read it again. The Congress has the power to call the military into action. The President just has the power to command the military once they do so. The President has no Constitutional authority to call the military into action, and Congress cannot delegate their authority to him.

And I'm still puzzled as to why people keep trotting out the WPA since, as I have shown before, the purpose of the WPA was to take away some of the power the President was unconstitutionally wielding. Just because it didn't go all the way back to the Constitutional function doesn't mean that the powers it didn't take from the President are still Constitutional.

[Kodiak]

Originally posted by shanek
The President has no Constitutional authority to call the military into action..

I never said the Constitution granted the President that power.
My point is that the Constitution doesn't say that the Congress is barred from delegating that power, focused or restricted in whatever way they see fit, to the President.

Originally posted by shanek
Congress cannot delegate their authority to him.

Where in the Constitution does it state that? Again, it seems to state the opposite in Article 1, Section 8:

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (which includes initiating military action) and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

[pgwenthold]

Originally posted by Kodiak


I never said the Constitution granted the President that power.
My point is that the Constitution doesn't say that the Congress is barred from delegating that power, focused or restricted in whatever way they see fit, to the President.


[/B]

Doesn't the constitution also say that the contents cannot be modified except by amendment?

If that is the case, then congress cannot absolve itself of any of its duties by passing a law.

Similarly, the president cannot give his powers to anyone else by executive order.

I see the powers designated to each branch by the constitution as not only giving the specified the right to such thing, but it is their duty to do such thing. The president cannot make the Chief Justice of the Supreme Court the commander-in-chief no matter how much he wants to. Sorry, bub, that is your job.

[Kodiak]

Originally posted by pgwenthold


Doesn't the constitution also say that the contents cannot be modified except by amendment?

If that is the case, then congress cannot absolve itself of any of its duties by passing a law.

Similarly, the president cannot give his powers to anyone else by executive order.

I see the powers designated to each branch by the constitution as not only giving the specified the right to such thing, but it is their duty to do such thing. The president cannot make the Chief Justice of the Supreme Court the commander-in-chief no matter how much he wants to. Sorry, bub, that is your job.

But the constitution isn't being modified.

Congress has absolved itself of nothing. It is still the only body that can declare war. The WPA gives specific instances and qualifications to the President's ability to initiate hostile action.

And though the president cannot give his powers, he does appoint people to represent him and act on his behalf as chief executive (sec. of state and ambassadors, for example).

I understand your views concerning the powers designated to each branch and I still contend that reasonable people can interpret the Constitution as allowing delegation since it isn't forbidden anywhere in the Constitution.

Isn't it possible that such delegation was considered by Congress as "necessary and proper for carrying into execution" (from Article 1, Section 8) the declaring of war?

[shanek]

Originally posted by Kodiak
My point is that the Constitution doesn't say that the Congress is barred from delegating that power, focused or restricted in whatever way they see fit, to the President.

And again, that doesn't matter. If the Constitution doesn't specifically say they can delegate the power to another branch, they can't do it. Again, that is totally different from delegating the power to committees and other structures within their own branch.

Where in the Constitution does it state that?

By not stating that they can, it states that they can't.

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (which includes initiating military action)

But not giving such power to the President.

[shanek]

Originally posted by Kodiak
Congress has absolved itself of nothing. It is still the only body that can declare war.

The problem is that we're waging war without declaring war.

And though the president cannot give his powers, he does appoint people to represent him and act on his behalf as chief executive (sec. of state and ambassadors, for example).

Within the Executive branch, yes.

Isn't it possible that such delegation was considered by Congress as "necessary and proper for carrying into execution" (from Article 1, Section 8) the declaring of war?

Not what they said in the Federalist Papers.

[Scorpy]

Congress has absolved itself of nothing. It is still the only body that can declare war. The WPA gives specific instances and qualifications to the President's ability to initiate hostile action.

The Executive branch is a completely separate branch. The powers granted to Congress have nothing to do with it. The Constitution does not give the President the power/ability or whatever to initiate hostile action. What Congress has to say about it is completely irrelevent. It is the Constitution that is the source of the President's power, not Congress.