The discussion revolves around the legal framework governing presidential military actions in the United States, including the conditions under which military attacks can be authorized, the relevant laws, and the roles of Congress and the President in these decisions. The conversation touches on constitutional interpretations, historical precedents, and the implications of military authority.
Participants express a range of views on the legal framework governing military actions, with no clear consensus on the interpretation of constitutional provisions or the implications of the War Powers Act. The discussion remains unresolved, with competing perspectives on the roles of the President and Congress.
Participants note the complexity and ambiguity surrounding the definitions of military authority and the conditions under which military action can be taken, highlighting the need for judicial interpretation and potential constitutional amendments.
Originally posted by Dissident Dan
What are the conditions necessary for military attacks in the United States, and by what laws? Who can make the decision? What conditions must be met before the decision can legally be made?
Originally posted by Zero
The problem I have is that the President is NOT supposed to be a military leader. He is designated Commander in Chief so that the military stays under civilian control, not so that Shrub can play G.I. Joe.
Originally posted by kat
Erm, maybe I'm misunderstanding what you're saying here but..General George Washington?
Originally posted by Zero
Actually, while I am not exactly sure of the history of the American army of the time(whether or not it was a standing army or no), Washinton had gone home after the war, for about 3 years before being elected.
Of course, my interpretation of things must be wrong, since they are not endorsed by Bush.
See sig.Originally posted by Zero
Russ has used big words to say something rather simple: Bush is now, for all intents and purposes, King of America.
I know what you mean, but that's still self-contradictory.The problem I have is that the President is NOT supposed to be a military leader. He is designated Commander in Chief...
Kat, the reason you don't understand is because of the contradiction. Zero meant (if I understand correctly) that the President is supposed to be the CIVILIAN head of the military, not a MILITARY head of the military. But the way he said it and the implications he implied are contradictory and/or just plain wrong. Its a difference that has no real difference as applied to the current situation. Overall Presidential power is not and never will be based on his military power.I'm still not grasping your point..maybe it'll be clearer after another cup of coffee.
From what you have said before, I guess you really believe that. Sad.Nah, that was just a general comment about how Bush would like to redefine himself as a military dictator.
Originally posted by russ_watters
I assume this is a biproduct of the other thread where you brought up the War Powers Act. Like Kat said, it *IS* murky, but the overriding basis for his military authority is Article 2, Section 2, Clause 1: "The President shall be Commander in Chief of the Army and Navy of the United States..."
But of course, where it gets murky is Article 1, Section 2: "[Congress shall have the Power] To declare war." So this of course begs the question: what is a declaration of war and when is it necessary? In 1775 if two militaries were fighting each other, it was almost always a declared war. Today, that just isn't the case. The military has been sent to dozens of places since WWII without a declaration of war.
"The constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure."
George Washington - 1793
". . . The power to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war."
James Madison - 1793
The War Powers Act was written to clarify the Constitutional powers of Congress and the President. http://www.luminet.net/~tgort/wpa.htm is a link, but the key quote is: "It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States..." But oops - Congress does not have the power to do that. Congress writes laws. The Supreme Court interprets laws and the Constitution. So a clarification of the Constitutional powers of the President and Congress with regard to war can be done one of two ways: with a Constitutional Amendment, or by a Supreme Court decision. Thus (and don't believe me, find yourself a Constitutional Law paper (or 10) on Google), the War Powers Act is unconstitutional.
So, back to square 1: What are the war powers of the President and what can be done if he violates his Constitutional obligations? IMO (with similar but varying opinions from the Constitutional law I've read), the President's war powers are very broad and a declaration of war is only required in a large conflict requiring a major portion of the resources of the US military and country. Korea and Vietnam would certainly qualify. Gulf I and II would both probably also qualify under my definition. Afghanistan would not. But here's the catch - in both Gulf wars, Congress gave its approval (whether the President asked for it or not). So that makes discussion of whether or not they needed a declaration of war moot - Congress authorized force without one.
Now, If Congress decides he's overstepped his bounds, they can impeach and remove him - the War Powers Act isn't required for that.
I'm only about 90% sure here, but I think the militias (national guard, today) are called into federal service by executive order of the President - not Congressional legislation.Originally posted by Dissident Dan
What my interpretation of "the president in C-i-C, and the Congress declares War" is is that the President executes the War that Congress decides upon. The statement regarding the President's power continues: "Section 2. 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;"
I completely disagree and there has never been an historical example of this. "Commander in Chief" has a pretty explicit meaning. It means he's at the top.So, the President only directs the Military when called by others (presumably, Congress), right? It doesn't say that the President gets to go "into actual service" (directing the military) whenver he wants to. Actually, that seems pretty explicit to me.
No. And that of course is why we are having this discussion.Is there anywhere a declaration of what is merely a "military action" or the like, and what is considered War?
Well if you agree that there are times when a declaration of war isn't necessary (do you?), then presumably Congress could decide this is one of those times. The difficulty would come if Congress thought a declaration was necessary, but the President thought it was not. Congress DOES always have the impeachment recourse, so I guess as long as Congress follows the rules of the impeachment process and follows the constitution (under the supervision of the USSC), it is up to them to decide whether the president has overstepped his bounds.I don't agree that formal Declaration of War is a moot point if Congress expressed approval.
Yes I know the difference, but I sometimes don't complete the sentence because I'm lazy. "The impeachment recourse" is impeachment AND conviction.Well, there is a big difference between impeachment and conviction.
Again, the constitution is vague, but I'm pretty sure "high crimes and misdemeanors" is about anything Congress says it is within reason. There may be some commentary from the Clinton impeachment that could shed some light on it.Isn't there some written set of criteria upon which a President can be removed? I need to read the Constitution more. Anyway, I am asking about previous decisions rendered in written legislation and judicial verdicts,
Originally posted by russ_watters
The War Powers Act was written to clarify the Constitutional powers of Congress and the President. http://www.luminet.net/~tgort/wpa.htm is a link, but the key quote is: "It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States..." But oops - Congress does not have the power to do that. Congress writes laws. The Supreme Court interprets laws and the Constitution. So a clarification of the Constitutional powers of the President and Congress with regard to war can be done one of two ways: with a Constitutional Amendment, or by a Supreme Court decision. Thus (and don't believe me, find yourself a Constitutional Law paper (or 10) on Google), the War Powers Act is unconstitutional.
To define and punish Piracies and Felonies committed on the high Seas, and Offences
against the Law of Nations;
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;
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;
Originally posted by Dissident Dan
What are the conditions necessary for military attacks in the United States, and by what laws? Who can make the decision? What conditions must be met before the decision can legally be made?
Originally posted by russ_watters
I'm only about 90% sure here, but I think the militias (national guard, today) are called into federal service by executive order of the President - not Congressional legislation.
Also, you imply that Congress gives orders to the president. This is not the case. The president is commander in chief and therefore takes orders from no one. And since a declaration of War is still a law, it must still be signed by the President. And I think a veto override would be a real Constitutional crisis. There has never been a case in American history where Congress has decided against the president's wishes to go to war.
I completely disagree and there has never been an historical example of this. "Commander in Chief" has a pretty explicit meaning. It means he's at the top.
If Congress does not give orders to the President, then what is declaration of War? I think that Commander-in-Chief explicity means to guide the actions of the troops when he is called into that service.
Interesing quotes though. The first from Washington seems to agree with me actually - it says "offensive expedition of importance." That leaves a broad and vague leway for the president to decide when to use troops. How important is important? And what is offensive? Like I said before, large regional conflicts such as Iraq I and II are straddling the line on that. And very few countries have ever admitted to an offensive war.
In things like a military peace-keeping effort, I think that that is rather obviously not war. I think that the only vagueness in "offensive expedition of importance" is the "importance" part. Offensive is rather well-defined by society. Protecting your base during an attack is defensive. Invading another land for the purposes of destroying militarily the forces or powers of a recognized government, especially when it is not even in response to an attack upon us, is offensive.
Now, I think that involving hundreds of thousands of troops qualifies as "important" under any set of criteria anywhere close to reasonable.
Well if you agree that there are times when a declaration of war isn't necessary (do you?), then presumably Congress could decide this is one of those times.
I agree that there are times when a declaration of War is not necessary, but I don't think that Congress should decide whimsically decide when that is. There should be specific criteria for when an action must be considered an act of War or not. This would be achieved through A) Supremem Court judicial interpretation or B) Constitutional amendment defining "War".
Originally posted by kat
Case prescedence would be found in "Youngstown Sheet and Tube Co. Verses Sawyer" in the opinions of Justice Black and Jackson. Jackson gave an analysis on the powers of congress and the commander in chief. I think it can be found at the findlaw site. I'll see if I can hunt it up later.
A. Presidential Authority Limitations - Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
One of the most noted frameworks for analyzing the constitutionality of presidential action in a time of crisis was outlined by Justice Jackson in Youngstown, 343 U.S. at 634 (Jackson, J., concurring). Presidential action may fall into one of three categories:
"1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."
* * *
"2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility."
* * *
"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter."