Declaration of war
Mary Dudziak
mdudziak at law.usc.edu
Mon Aug 29 16:52:07 PDT 2005
Treaties also provide, at least arguably, an alternative means of
initiating military action. On this point, see David Golove, "From
Versailles to San Francisco: The Revolutionary Transformation of the
War Powers." 70 Colorado Law Review 1491 (1999).
Mary Dudziak
At 04:34 PM 8/29/2005, Jonathan Miller wrote:
>I have missed portions of this chain, but I think you are missing
>the fact that a treaty may change the range of conduct that the
>President is free to engage in just as a law can. You might wish to
>keep the following in mind from an international/constitutional law
>perspective:
>
>1) The United States is bound by various treaties, including the UN
>Charter and the Kellogg-Briand Pact of 1928, not to wage a war of
>aggression. (Which I will leave undefined.) And there is little
>doubt that assassination of a foreign head of state is an act of war.
>
> 2) While it is possible that the President has the constitutional
> authority to denounce a treaty, I think a strong argument could be
> made that deliberate violation of a treaty by the President without
> denouncing it would be a violation of U.S. law.
>
>If you accept these arguments, then there are circumstances where
>assassination of a foreign leader violates U.S. law. Sovereign
>immunity may bar a lawsuit and the issue may be barred by political
>question doctrine, but the obligation under the supremacy clause
>remains. I don't think a self-executing v. non-self-executing
>distinction is useful here, because while portions of the UN Charter
>are self-executing, the issue of the legality of a war of aggression
>is almost impossible to litigate anyway. In the assassination/war
>of aggression context, self-executing v. non-self-executing does not
>tell you anything about the President's authority vis a vis Congress.
>
>Presumably when the Senate consents to a treaty barring the
>President from engaging in particular conduct, the President is no
>longer free to engage in that conduct so long as the treaty is in
>force. Whether the issue is justiciable does not change the
>illegality of the conduct, and since the
>self-executing/non-self-executing distinction is directed at the
>courts, and not at the legal authority of the President vis a vis
>Congress, I don't think that calling a treaty non-self-executing
>makes any difference to the issue of the President's authority.
>Jonathan Miller
>
>
>Volokh, Eugene wrote:
>> Whether the President can act -- whether by ordering an attack
>> on a post manned by low-level soldiers, or an assassination of a
>> commander-in-chief -- in the absence of a declaration of war is
>> analytically separate, I think, from whether assassination as such
>> is unconstitutional (a rule that might not even be sensitive to
>> whether war is declared). It's a classic question, but one that I
>> think is much worth discussing. So, if I might ask:
>>
>> What do people on the list who have studied the subject think
>> about the original meaning of the Declare War Clause? To what
>> extent does it limit the President's power to use military force
>> in the absence of such a declaration?
>>
>> As I understand it, modern practice has generally settled that
>> the President does have broad power to use military force, even
>> without a declaration of war. But I'd love to hear what others
>> think about the original meaning.
>>
>> Eugene
>>-----Original Message-----
>>From: guayiya [<mailto:guayiya at bellsouth.net>mailto:guayiya at bellsouth.net]
>>Sent: Monday, August 29, 2005 3:06 PM
>>To: Volokh, Eugene
>>Cc: <mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu
>>Subject: Re: Robertson's urging the government to assassinate Chavez
>>
>>This post appears to reflect an unstated assumption that the
>>President, unlike Congress, has power to do anything not expressly
>>prohibited by the Constitution itself. This assumption has no
>>textual or structural support, and does potentially boundless
>>damage to the rule of law, the separation of powers and individual
>>rights, just as would a similar doctrine regarding Congress.
>>The President strictly speaking has power to perform acts of war
>>only after Congress declares war. One who acts without the form of
>>authorization required by the Constitution has usurped power and
>>must "throw himself upon the country," i.e., fall back on
>>extra-constitutional arguments and hope for political, not
>>constitutional or legal, vindication.
>>It is obvious that Congress and the courts have failed to stand
>>consistently on these principles. That is a very serious matter,
>>but it does not amend the Constitution.
>>Daniel Hoffman
>>
>>Volokh, Eugene wrote:
>>> It seems to me that the Constitution does not prohibit the
>>> President from authorizing the killing of foreign
>>> commanders-in-chief any more than it prohibits the President from
>>> authorizing the killing of foreign soldiers. I think such
>>> assassinations may be immoral in many instances, and practically
>>> harmful in many others. But it seems to me that this is a matter
>>> for political and moral controls, not constitutional or legal ones.
>>>
>>> Eugene
>>>-----Original Message-----
>>>From: Lynne Henderson
>>>[<mailto:hendersl at ix.netcom.com>mailto:hendersl at ix.netcom.com]
>>>Sent: Saturday, August 27, 2005 6:08 PM
>>>To: <mailto:RJLipkin at aol.com>RJLipkin at aol.com
>>>Cc: <mailto:jca at stanford.edu>jca at stanford.edu;
>>><mailto:mschor at suffolk.edu>mschor at suffolk.edu; Volokh, Eugene;
>>><mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
>>>Subject: Re: Robertson's urging the government to assassinate Chavez
>>>
>>>"Almost never?" Obviously Hitler is the counter-example, but we
>>>were at war (foramally declared) with Nazi Germany, and as I
>>>understand the law of war, killing the enemy is justified. We
>>>might be sorely tempted, and realpolitick might justify the murder
>>>of someone opposed to US interests, but how can you distiguish
>>>among Pol Pot, Idi Amin, Saddam Hussein, etc. Chavez doesn't even
>>>come close IMHO, although that is not directly relevant. In fact,
>>>the law might very well (and rightly so) prohibit assassination
>>>because we cannot come up with reliable criteria for who should be
>>>assassinated when. Defenses can be carved out.
>>>
>>>To cut to the con law chase, I guess, however, what the "rule of
>>>law" is does matter. A basic point of "this is a government of
>>>laws, not men" is that whim, caprice, power, or manipulation
>>>cannot override legal obligation. That the *content* of legal
>>>obligation is contested doesn't undercut the overriding claim of
>>>the "rule of law." If the President decides, as Nixon did, that
>>>"if the president does it, then it is not against the law", and
>>>you accept that, then we are well on our way to an
>>>authoritarian/totalitarian state. If clever lawyers can find ways
>>>around the purpose and intent of a legal prohibition, that doesn't
>>>negate the purpose and intent. If there is "room for
>>>interpretation' or judges exercising discretion (cf H.L.A. Hart,
>>>*The Concept of Law*), that doesn't mean abandonment of the
>>>commitment of the duty to obey law (and note the difference
>>>between legal duty to obey and moral duty to obey).
>>>
>>>It amazes me how narrowly "positivist" the group members get--that
>>>is , what is declared, written, human law interpreted without
>>>spirit or purpose--when they want one result, and how willing they
>>>are to depart from the model when it suits their ends. Eg, there
>>>is no constitutional provision explicitly prohibiting the
>>>President from torturing prisoners of war, or assassinating
>>>foreign leaders, and there is no positive domestic law "clearly on
>>>point", so therefore,torture is not prohibited, or in this case it
>>>is permissible to assassinate a foreign leader.
>>>
>>>The duty to obey the law can narrowly or broadly, but that doesn't
>>>disocount Janet's broader point, that governments under the "rule
>>>of law" have a prima facie duty to obey that law, no matter what
>>>their preferences, whims, etc.
>>>
>>>Lynne Henderson
>>>
>>>Vis. Prof. Santa clara Uni. School of Law 2005-2006
>>>
>>>
>>>
>>>
>>>
>>>
>>>_______________________________________________
>>>
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>>><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
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>>>
>>>
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>>
>>
>>
>>
>>
>>_______________________________________________
>>To post, send message to
>><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
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>>
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>
>
>--
>Jonathan Miller
>Professor of Law
>Southwestern University School of Law
>675 S. Westmoreland Ave.
>Los Angeles, CA 90005-3992
>Tel. 213-738-6784_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed
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>are posted; people can read the Web archives; and list members can
>(rightly or wrongly) forward the messages to others.
----------
Mary L. Dudziak 2005-06 Contact information:
Judge Edward J. and Ruey L. Guirado Professor Visiting
Professor of Law
of Law, History and Political
Science Harvard Law School
University of Southern California Law School Areeda 132
Los Angeles, CA 90089-0071 Cambridge, MA 02138
phone: 213.740.4789 phone: 617.496.8834
fax: 213.740.5502 fax: 617.496.4867
e-mail: mdudziak at law.usc.edu
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