See PART 2 below
[COMMENT: Another of Vieira's good articles. E. Fox]
Edwin Vieira, Jr., Ph.D., J.D.
Amidst the flood of propaganda these days on behalf of what must be the most breathtaking expansion of Presidential power since Franklin Roosevelt's New Deal, especially glaring are the assertions of self-styled "conservative" media personalities that nothing is amiss, because: (i) the President is "Commander in Chief;" (ii) in that capacity he supposedly enjoys "inherent" power to take whatever actions he may deem necessary to protect this country from "terrorism;" (iii) assertion of this Presidential power is especially vital now, with this country engaged in a "war on terror;" and (iv) in any event, Congress has broadly authorized the President to use "force" in "the war on terror." None of these contentions can withstand even cursory scrutiny.
1. The Constitution does designate the President as "Commander in Chief." Article II, Section 2, Clause 1. Not, however, as "Commander in Chief" of the country as a whole, with the plenary powers of some Fuhrer or Duce, but only as "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." As will be explained below, in this capacity the President exercises, not some limitless "inherent" power, but largely a circumscribed and contingent authority dependent upon mandates from Congress.
2. Merely labeling some situation a "war" cannot call the President's rightful powers as "Commander in Chief" into operation, let alone boundlessly expand those powers. The so-called "war on terror" is not the unique example of such martial political hyperbole bombarding this country today. Simultaneously, Americans are exhorted to acquiesce in enlarged governmental powers to fight "the war on crime," "the war on drugs," "the war on poverty," and even "the war on obesity." Does anyone believe, though, that under color of (say) waging a "war on obesity" the President could declare McDonald's employees "enemy combatants" and its fatty foods "weapons of mass destruction," could deploy the Armed Forces to occupy its restaurants, or could even tap its phones without submitting to judicial review?
Constitutionally speaking, "war" is a very specific set of legal relations between two or more independent nations. For the most obvious example, in an actual "war" soldiers of one nation may, within certain limits, intentionally kill soldiers of another nation without thereby being guilty of murder. Thus, according to strict constitutional logic, a "war on terror" is an existential impossibility--if only because "terror" is a tactic, not a country; and "terrorists" do not constitute one or more independent nations, but at most are mere bands of private criminals. True, a clandestine or irregular armed force of some nation could employ the tactics of "terrorists" on behalf of that nation. Then, however, any "war" would be waged against that nation as a whole, not against just the "terrorists" as individuals. Thus, not surprisingly, Congress has never exercised its constitutional power "[t]o declare War" to declare a "war on terror." See Article I, Section 8, Clause 11.
Perhaps even more importantly, Congress has not declared "war" on Iraq, either, even though such a declaration would be formally possible, and notwithstanding that the President has launched an invasion of that independent nation, overthrown its once-legitimate (if obnoxious) government, occupied its territory, and imposed a new regime on its people. This absence of Congressional action is consequential, because only Congress has the power "[t]o declare War." And the Constitution plainly understands that, absent such a declaration from the only source authorized to pronounce it, a "War" cannot be conducted legally by the United States.
That the Constitution entrusts the power "[t]o declare War" to Congress alone is no historical accident, but rather is of profound legal significance. Under pre-constitutional English law, the King (the English Executive) had essentially unilateral, personal power to thrust a war upon his countrymen. If the Constitution had said nothing explicit about the power "[t]o declare War," that power would have passed by implication to the President under "the executive Power." Article II, Section 1, Clause 2. By placing the power "[t]o declare War" among "[a]ll legislative Powers herein granted" (Article I, Section 1), the Constitution transformed that power from an Executive to a Legislative power. Nothing could more clearly indicate that the Constitution denies the President any pretense of power himself either "[t]o declare War" or to involve this country in actions usually appropriate only after such a declaration has been made. (For example, ordering American soldiers intentionally to kill the soldiers of some other nation, under color of the claim that such killings are not simply criminal homicides but are justified by the laws of war.)
Revealingly, the absence of a declaration of "War" by Congress against any nation allegedly deploying "terrorists" evidences the disbelief of Congressmen that a case can be made that any nation has actually (if perhaps surreptitiously) attacked the United States in that manner. And that some sort of aggressive attack is necessary for "War" the Constitution makes plain. For instance, the Preamble states that "We the People * * * do ordain and establish this Constitution," among other purposes, "to * * * provide for the common defence." And the Constitution empowers Congress "[t]o lay and collect Taxes * * * to * * * provide for the common Defence." For "Defence" only, not for aggression.
Moreover, if the plain language of "the supreme Law of the Land" (Article VI, Clause 2) is not enough to give pause to individuals who "shall be bound by Oath or Affirmation, to support th[e] Constitution" (Article VI, Clause 3), they should recall that an attack by one nation upon another independent nation not justified by "the common defence" of the former constitutes a crime under international law, as settled at the Nuremberg and Tokyo War Crimes Trials. The Constitution empowers Congress "[t]o define and punish * * * Offences against the Law of Nations." Article I, Section 8, Clause 10. It extends to Congress no power to commit "Offences against the Law of Nations."
If a declaration of "War" by the United States against some other nation in the course of "the war on terror" is not justified by "the common Defence * * * of the United States," it certainly cannot be rationalized by an airy appeal to "spreading democracy" in foreign lands. The sole vaguely relevant authority of the United States is to "guarantee to every State in this Union a Republican Form of Government." Article IV, Section 4. Nowhere does the Constitution empower the United States to further naked "democracy," either at home or abroad, by any means, let alone "War."
Neither could a declaration of "War" be justified simply on the grounds of defending some other country. The Constitution empowers Congress "[t]o lay and collect Taxes * * * to * * * provide for the common Defence * * * of the United States." If a "War" is being fought, not "for the common Defence * * * of the United States," but only for the defense of some other country, Congress cannot lawfully "lay and collect Taxes" to finance it. Inasmuch as the inability to fund such a "War" must render the declaration operationally nugatory if not ridiculous, the declaration itself must be beyond Congress's authority. Furthermore, because no treaty can override the Constitution, even a treaty to defend some other country cannot bind the United States, unless, when the time for that defense comes, "the common Defence * * * of the United States" themselves is truly at stake.
Finally, even if the leaders of some other nation were planning to attack the United States in the indefinite future, a declaration of "War" now would be beyond Congress's power. For preemptive war has been considered illegal for several hundred years (at least since Hugo Grotius, whom many consider the father of modern international law, wrote De Jure Belli ac Pacis)--a principle most recently applied in the judgments at Nuremberg.
3. Some "conservative" pundits argue that, even though Congress has not "declare[d] War," it has authorized the President to employ "force" in "the war on terror." This merely confounds the issue.
"Force" is not a constitutional term. Nowhere does the Constitution empower Congress to exercise "force" itself, or to license the President to do so. Even what the word "force" might mean, in some constitutionally acceptable context, is highly debatable.
If "force" is simply an euphemism for "War," then a statute delegating to the President the power himself to decide when to employ "force"--that is, to launch a "War" on his own personal recognizance--must be unconstitutional. As explained above, the Constitution explicitly empowers Congress with respect to the initiation of "War" precisely in order to withhold that authority from the President. For Congress to purport to delegate that very power to the President under any terminology would reverse the Constitution's studied separation of powers--about as violent and unjustifiable a flouting of the Constitution as one could imagine.
If "force" is not simply an euphemism for "War," then what does it mean? Any type and level of violence? Directed against anyone? For any reason? Notwithstanding the laws of war, the laws of nations, and other laws of the United States? Violence not related to "the common defence"? Violence that is destructive of "Justice," "domestic Tranquility," and "the Blessings of Liberty" within the United States? Obviously, to make sense of the term, Congress would have to define "force" very distinctly, by setting the specific parameters within which it could be used--for example, when, how, by whom, for what purposes, with what limitations, and so on. And if Congress did not establish those parameters with sufficient clarity, it would unconstitutionally delegate Legislative power to the Executive. But if Congress did properly chart those parameters, the President would be bound by them. Should the President exceed the Congressional mandate, he would violate the law.
Dr. Edwin Vieira, Jr., Ph.D., J.D.
February 20, 2006
4. Some "conservatives" further contend that the President requires no license from Congress to employ "force" in "the war on terror" because he is "Commander in Chief," and therefore has "inherent" authority to take whatever actions he believes are appropriate to protect the country. In fact, though, the President's authority as "Commander in Chief" is highly limited. The Constitution appoints "[t]he President * * * [as] 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." Article II, Section 1, Clause 1. But the Constitution also delegates to Congress--not to the President--the powers "[t]o make Rules for the Government and Regulation of the land and naval Forces," and "[t]o provide * * * for governing such Part of the[ Militia] as may be employed in the Service of the United States."
Article I, Section 8, Clauses 14 and 16. Plainly, then, the great bulk of authority the President may exercise over the Army, Navy, and Militia is neither "inherent" nor unlimited, but derivative and confined. Within other constitutional limitations, Congress may impose upon the Army, Navy, and Militia whatever rules and regulations for governance it considers necessary and proper; and the President must comply with those rules and regulations, if only for the practical reason that no member of the Army, Navy, or Militia may constitutionally follow a purported order from the President that contravenes valid Congressional directives.
Thus, if Congress decrees that the Army, Navy, and Militia must provide due process with judicial review to determine if prisoners are actually "enemy combatants;" or that the Army, Navy, and Militia may not impose torture or other physical or mental pressure on prisoners; or that the Army, Navy, and Militia may not spy on Americans (or foreigners, for that matter); then such a declaration concludes the matter against every member of the Armed Forces and the Militia--including their "Commander in Chief"--because the Constitution says so.
Indeed, precisely because he is "Commander in Chief" "of the land and naval Forces" and of "the Militia of the several States," the President is self-evidently bound by such rules and regulations Congress provides for those entities. The contention that the President enjoys some "inherent power" as "Commander in Chief" to disregard or violate the very duties of "Commander in Chief" that derive from the very body the Constitution explicitly empowers to define those duties is absurd.
If the President does disregard or violate any valid Congressional directive or prohibition relating to "the Government and Regulation of the land and naval Forces" or the Militia, then to that extent he fails to perform his duty to "take Care that the Laws be faithfully executed." Article II, Section 3. If his failure is intentional, the President violates his "Oath or Affirmation * * * that [he] will faithfully execute the Office of President of the United States, and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Article II, Section 1, Clause 7. Such perjury constitutes a "high Crime[ ]" for which the President may--and should--be impeached, convicted, and "removed from Office." Article II, Section 4.
5. The case is even clearer if the agency involved in the President's misdeeds is not part of the Army, Navy, or Militia at all, but is a purely civilian agency, such as the NSA. Unlike "the Militia of the several States" (which are constitutionally recognized entities), a civilian agency is entirely a creature of Congress, which Congress may create or refuse to create, and to which it may give such powers, or from which it may withhold such powers, on such conditions, as it chooses. With respect to such an agency, the President enjoys no authority other than what Congress delegates to him--and self-evidently no power that Congress withholds. (For example, Congress could decree that the NSA may not intercept any electronic transmission, anywhere in the world, without a prior court order, no matter what the President desires. If so, the President is utterly impotent to order the NSA to do otherwise.) Should the President venture one Angstrom Unit beyond the boundaries of the statute that creates the agency and defines its authority, he would not be "tak[ing] Care that the Laws be faithfully executed." And if this misstep were intentional, he would be subject to impeachment, conviction, and removal from office.
6. True enough, in the absence of specific Congressional directives to the contrary, the President has authority as "Commander in Chief" to order the Armed Forces to engage in operations aimed at national self-defense against attacks by foreign aggressors. Just as "War," though, "self-defense"--whether on the part of an individual or a nation--is a specific legal conception, not a open-ended license simply to shoot first and ask questions later. At the minimum, the use of deadly force in self-defense is justified only in response to some imminent, unavoidable peril. The defender must employ only the amount of force reasonably necessary to stop the attacker. And the defender must cease the use of force when the threat has been thwarted, not continue to apply, let alone to escalate, force so as to turn his own actions from self-defense into aggression.
Moreover, even self-defense would not necessarily entail "War," unless Congress so declared. (Congress, after all, might not believe the situation warranted "War.") For example, on "the Day of Infamy," everyone recognized that the Japanese "sneak attack" on Pearl Harbor was an act of "war" in the operational sense, which the American Armed Forces were entitled to repel with whatever means they could put into the field. But even Franklin Roosevelt knew that he had to have an actual declaration of "War" from Congress to render further military operations against Japan legal. So the next day he sought, and obtained, that declaration from Congress. Although he had flouted the Constitution in many other respects theretofore, Roosevelt was perfectly aware that he enjoyed no "inherent" authority as "Commander in Chief" to conduct a "War" throughout the Pacific without proper constitutional approval from Congress, even with the Japanese Imperial Army and Navy running amok throughout Asia.
Furthermore, when the specific issue is what are the appropriate means for national self-defense against "terrorism," the constitutional answer is plainly not the Army or Navy, but "the Militia of the several States"; and the locus of power in that respect lies originally in Congress, and only derivatively in the President. The Constitution empowers Congress "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions," and "[t]o 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." Article I, Section 8, Clauses 15 and 16. And the Second Amendment declares that "well regulated Militia" are "necessary to the security of a free State." These statements rather succinctly pinpoint the Militia as the key forces constitutionally mandated for "homeland security," and Congress as the body responsible for maintaining the Militia in a state of readiness for, and for deploying it in, that service.
In these circumstances, it passes understanding how anyone could argue that the President has "inherent" authority to deploy the Army and Navy to "execute the Laws of the Union, suppress Insurrections and repel Invasions" in "the war on terror," when he has not even tried to use "the Militia of the several States" for those purposes. Plainly, the President (and Congress, too) are duty-bound to use the means the Constitution explicitly provides, before they turn to some other means only questionably implied in "the supreme Law of the Land." Indeed, the President's and Congress's failure or refusal to use "the Militia of the several States" to any degree in "the war on terror" exposes the bogus nature of the contention that "the war on terror," as it is being waged, has any sound constitutional basis at all. For if the President and Congress were intent on following the Constitution, they would be championing a revitalization of the Militia as the foundation of "homeland security." before they even suggested turning the Armed Forces into a national domestic police force, and paramilitarizing the police forces of every State, city, and hamlet throughout this country.
7. In addition to the foregoing, even Congress cannot authorize the President to take any actions that violate the guarantees of, say, the Second, Fourth, Fifth, Sixth, and Eight Amendments. Neither can the President's own powers (whatever they may be) override these, or any other, constitutional limitations.
Nowhere in these Amendments, or anywhere else, does the Constitution permit exceptions for individuals whom the President labels "terrorists" or "enemy combatants." "Terrorists" not part of an actual enemy nation's armed forces, after all, are simply a particular species of private criminals. And for an individual to be, in reality as opposed to rhetoric, an "enemy combatant," there must be an actual "enemy"--that is, a foreign nation with which the United States are declaredly at "War" Which obviously requires a true declaration of "War" by Congress, not some back-door resolution or statute that studiously avoids the term "War" entirely.
Moreover, to qualify as an "enemy combatant," even a citizen of an actual "enemy" nation must be an actual "combatant" (because common experience teaches that even nations with which the United States are at "War" may be composed largely of noncombatants). Whether an individual is a "combatant" or not is both a question of law (a set of definitions and standards) and particularly a question of facts that fit, or do not fit, the law. In any case in which the constitutional powers of the President and the constitutional rights of some individual turn on that individual's possible status as an "enemy combatant," the material facts as to that status are what lawyers call "constitutional facts." "Constitutional facts" cannot be determined unilaterally or finally by the Executive or by administrative agencies, but must be settled by the Judiciary. See, e.g., Crowell v. Benson, 285 U.S. 22 (1932). Therefore, the President cannot have "inherent" authority to declare anyone to be an "enemy combatant," without recourse to judicial review.
In sum, the arguments that all too many "conservative" media personalities typically put forward these days to infuse the Presidency with Fuhrer-like powers are the products of constitutional illiteracy. They are, however, not just nonsense, but extremely dangerous nonsense--because they will surely be trotted out in the future in support of a comprehensive police state that these same "conservatives" themselves will find most uncongenial, but as the result of their own efforts too deeply entrenched to oppose. Proving, once again, that "situation constitutionalism"--the notion that the Constitution may be creatively interpreted to fit some immediate political agenda, rather than all political agendas being required to square with the original intent of the Constitution--is a Sirens' song that will surely lure America's ship of state onto the rocks of destruction. And far sooner than most Americans imagine. For part 1 click below.
© 2006 Edwin Vieira, Jr. - All Rights Reserved
Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the country. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective.
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary"
He can be reached at:
13877 Napa Drive
Manassas, Virginia 20112.
* * * * * * * * * * * * * * * *