Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, December 28, 2005

What Does Article II Actually Say?

Hi All,

The President argues that he can do pretty much what ever he likes during times of war (the duration of which is, by the way, for him alone to determine). He claims this power based mainly on Article II of the US Constitution. Over the recent Christmas weekend, some Republican relatives of mine very readily accepted this explanation - without ever having actually read Article II.

Bush says it is obvious that Article II places exclusive Presidential authority in areas of national security. He argues that even Congressional limits through laws such as FISA and the Patriot Act (such as they are) are unconstitutional limits on executive authority granted by Article II. So what does it actually say? Is it a glorification of unchecked executive power?

There are three paragraphs to Article II, section 2. Two of them refer clearly to limits on executive authority by the Senate! The third mentions the President's role as "commander in chief." It conspicuously avoids saying that the President has the sole authority to say that a state of war exists. It also does not give the President sole authority over the rules and regulations binding the military!

Article I outlines the powers of Congress. Pay particular attention to section 8. In that section Congress has rather sweeping powers to interfere in exactly those areas of government Bush now claims are the exclusive domain of the executive.

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; ...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. (Article I, section 2, paragraphs 10, 11 and 18)

In other words, there is a strong argument that Article I of the Constitution explicitly grants Congress NOT THE PRESIDENT the supreme authority in actions like the "War on Terror." And what if it is an actual war? Then Congress is the sole authority on that declaration according to Article I, section 2, paragraph 11.

Bush says he has unlimited power in times of war and with regard to the military. Yet, the Founding Fathers stated clearly in the first article of the Constitution that this is not the case!



Dr. Strangelove said...

Bravo, RxR! Well said. You clarified much of what has been bothering me about Bush's approach to the so-called "war" on terror. Whenever reasonable people try to circumscribe Bush's power, Republicans shake their heads and explain patiently, "we're in a war," as if that is all the justification required for an authoritarian executive. OK, this is going to be a LONG comment. RxR inspired me.

RxR's post illustrates the simple point that the founding fathers put a fair amount of thought into war powers... and they most certainly did not add a clause (a "self-destruct" button, as LTG once referred to such constitutional "emergency" clauses as found in some other constitutions) to suspend large portions of the Constitution in times of trouble. (And even if they had, the subsequently added Bill of Rights would have superseded it anyhow.)

I think it boils down to two Constitutional questions: are we at war, and what would that imply? Many pundits assume that back in the good old days of American History, everyone viewed being at war like being pregnant: either you were or you weren't. Modern pundits like to emphasize that the modern situation is not so black-and-white, but that the need for acting with expedience and the wide spectrum of operations have created many shades of gray. I don't think they give the founding fathers nearly enough credit.

If you look, you will find several words in the Constitution that span a spectrum between war and peace. Here's my rundown.

In Section 1.8 (the passage RxR quoted) we find that the founding fathers gave the Congress several different martial powers. There is of course the power to, "declare war," but in the same sentence they also mention the lesser powers to, "grant letters of marque and reprisal," and to make "captures on land and water." Later on, without mentioning "war" at all, the same section gives Congress the power to "call forth the militia" to "suppress insurrections and repel invasions." (We should note that Army, Navy, and Militia are all mentioned separately.)

In Section 1.9, we see a specific restriction on Congressional powers except in the most dire circumstances: the writ of habeus corpus may not be suspended except when "Rebellion" or "Invasion" is underway and the public safety requires it. Note that mere "war" is not enough! There actually need to be enemy troops on American soil. If you doubt this distinction between war and invasion, one need merely look at the next section.

Section 1.10 is revealing in that it specifically forbids States to "grant letters of marque and reprisal" under any circumstances, but will permit them to, "engage in War," with consent of Congress (note that "engaging" in war with consent of Congress is distinct from "declaring" war). Furthermore, a State may engage in war without approval if that state is, "actually invaded, or in such imminent danger as will not admit of delay." We see a clear distinction between "war" and "invasion" and we also see that the founding fathers were perfectly aware that exigent circumstances might arise.

As RxR would remind us, all of that was in the Legislative powers. In Article II, you may only look in vain for any mention of "war," "invasion," or "insurrection." The President is given the role of Commander in Chief. On "extraordinary Occasions," he is only given the power to call Congress into joint session!

In Article III, "war" is mentioned again in an interesting manner: treason is defined when an individual levies war against the United States. (The word "war" is even capitalized.) How can one read this clause and not realize that the founding fathers were aware of the possibility of warlike action by small groups?

So where does this leave us? Are we at war or not? Answer: kinda sorta. I would say that the invasion of Afghanistan was (is) engaging in war without declaring one. I would say that going after sleeper cells in the U.S. is akin to fighting an insurrection, or fighting traitors "levying War" against the United States, or perhaps even fighting an invasion of individuals. At any rate, I believe the founding fathers would have categorized the situation as something for Congress to figure out.

It has been over four years since we were attacked: the President is not allowed to use "imminent danger" and "exigent circumstances" to justify circumventing Congress for four years! And yet President Bush claims expansive "war" powers to spy on American citizens within the United States, who are not members of Al Qaeda, and to do so without any Congressional or Judicial oversight. I dare anyone to find these powers in the Constitution.

Bush asked for the USA Patriot Act, calling it essential to free his hands for domestic surveillance in this "war," and he got it. But now he claims Article II authority to go beyond that act anyhow--so why did he need it?! And how can he use Congress' "Authorization to Use Military Force" as his "war" justification when he refuses to admit that the War Powers Act (on which the AUMF is based) is constitutional? And by the way, the AUMF explicitly authorized force only against those who commited the 9/11 attacks... not against "terror" as a noun.

My point is that the founding fathers understood that there were many gray areas between war and peace, and they provided several explicit emergency powers for the Congress and for the States... but none for the President. That really ought to tell us something. Because I think the founding fathers knew a thing or two about the dangers of tyrants.

[ps. RxR: I took the liberty of editing your HTML code to make the "collapse this post" tag work properly.]

Anonymous said...

Thanks for fixing the post. I was having major trouble with it for some reason.

I think it is useful at this point to describe what a "letter of marque" is. Letters of Marque were authorizations to mercenary sea captains (aka pirates) to raid the shipping of designated countries without fear of being hanged by the country that issued the letter of marque. Holders of such letters were called "Privateers" and made a great deal of their being different from outright pirates. But the difference was blurry and subject to the winds of political change as Captain Kidd  found out to his dissapointment.

There are many political scientists now who see similarities between the old days of privateers and letters of marque and today's scourge, terrorism and state sponsored terror. Bin Laden's gang with minimal dependence on states would be pirates or "free booters." But terrorists like Abu Nidal or Hezballah (who worked for states) would be privateers.

I contend that - as Dr. S. pointed out - the Founders would have recognized our current dilemma as something they anticipated. Not exactly in every detail but certainly something they expected in the general sense. These guys were very very smart. Far smarter than our President or even Karl Rove.  

// posted by Raised By Republicans

Anonymous said...

It is absolutely critical to recognize that terrorism is not a brand new phenomenon without precedent requiring a completely diferent set of rules. The power of being commander-in-chief was not, as Bush and right wingers contend, a magical grant of major foreign policy power. It was intended, rather, to subordinate military power to civilian rule and prevent martial law.  

// posted by LTG