The Article II Argument

Mon Jan 30 18:19:40 PST 2006

A thread on another list raises a related question. Debating whether 
the Wall Street Journal fairly characterizes environmental extremists 
as "terrorists" for torching empty ski lodges and SUV inventories, 
someone suggested that the President enjoys as much latitude as the 
WSJ in defining terrorism and  determining the scope of the "War on 
Terror." If a formal declaration of war is unnecessary, and a joint 
resolution is optional and hortatory, and the enemy can be a cloud of 
organizations and individuals with cloudy agendas that mostly haven't 
even imagined taking up arms against the United States, is there 
anyone or anything that the President can't go to war against?

If the President can assume power by declaring war on terrorism at a 
press conference, why can't he declare war on crime and order the 
warrantless seizure of identity thieves as well as ideological 
arsonists? If the President's authority is sui generis because the 
threat posed by "global terrorism" is beyond the reach of ordinary 
federal and state police powers, is it more than a lack of 
imagination and a coal-fed administration that's holding up the war 
against global warming? Even if the President needs a foreign enemy 
and threatened violence to call it wartime, isn't it clear that 
transborder telecommunications will always be part of the President's 
battlefield, no matter who or where the enemy is, as long as the 
enemy is armed with cellphones?

Even if we kill them all or capture their cellphones, if the 
President's wartime authority can be exercised preemptively to defend 
national security, and that must be so, and an unexpected attack 
would more likely be launched by email than by armada, is there even 
such a thing as a peacetime president?

John Noble

At 3:43 PM -0500 1/29/06, William D Rich wrote:
>Many thanks, Marty, for so much useful information.
>
>Although the Administration's arguments have been made in the 
>context of and explicitly refer to wartime, I don't see why they 
>wouldn't apply in peacetime as well.  The UCMJ and other pieces of 
>legislation prescribe rules that constrain the President in the 
>exercise of his power to command the armed forces in wartime and 
>peacetime.
>
>The main premise of the Administration's argument, stated in general 
>terms, is that Article II prohibits Congress from prescribing rules 
>that constrain the President in the exercise of his Article II 
>powers.  The extent of Congress' powers to do so is certainly 
>debatable, but could it be correct as a general matter that Congress 
>cannot prescribe rules that constrain the President in the exercise 
>of his powers?
>
>In the particular context of the commander-in-chief power, even in 
>wartime, there is a specific grant of power to Congress to be 
>considered:  "Congress shall have Power  . . .  To make Rules for 
>the Government and Regulation of the land and naval Forces. . . ." 
>The "Torture Memo", citing the Constitution's text, structure, and 
>history in support of the conclusion that the President cannot be 
>constrained by legislation in his decisions about how to interrogate 
>suspected terrorists, omits any reference to this grant of power to 
>Congress.  So much for text.  It would be interesting to know 
>whether the Yoo memo does likewise or, if not, what meaning it 
>attributes to this clause.  It's a pity that the Yoo memo apparently 
>can't be disclosed without jeopardizing national security.
>
>Bill Rich
>Univ. of Akron
>rich at uakron.edu
>
>
>
>At 06:39 PM 1/28/2006, Marty Lederman wrote:
>
>>There is almost certainly an OLC memo (dated 3/14/03) comcluding 
>>that the UCMJ prohibitions on assault, threats, cruelty and 
>>maltreatment cannot limit presidentially authorized interrogation 
>>of the enemy.  See:
>>
>><http://balkin.blogspot.com/2005/06/gtmo-where-was-law-whither-ucmj.html> 
>>http://balkin.blogspot.com/2005/06/gtmo-where-was-law-whither-ucmj.html
>>
>>  http://balkin.blogspot.com/2005/07/heroes-of-pentagons-interrogation.html
>>
>>Similar analysis led DoD General Counsel Haynes to recommend 
>>Rumsfeld's approval of techniques at GTMO in late 2002 that would 
>>clearly violate the UCMJ.  And the OLC 3/2003 analysis almost 
>>certainly played a large part in the "migration" of harsh 
>>(UCMJ-violative) techniques from GTMO to Iraq and Afghanistan from 
>>March through December 2003, at which point new OLC head Jack 
>>Goldsmith disavowed the John Yoo memo of March 2003 -- see 
>><http://balkin.blogspot.com/2005/09/silver-linings-or-strange-but-true.html> 
>>http://balkin.blogspot.com/2005/09/silver-linings-or-strange-but-true.html 
>>.
>>
>>
>>----- Original Message -----
>>
>>From: <mailto:rich at uakron.edu>William D Rich
>>
>>To: <mailto:conlawprof at lists.ucla.edu>conlawprof at lists.ucla.edu
>>
>>Sent: Saturday, January 28, 2006 6:07 PM
>>
>>Subject: Re: The Left, patriotism, and threats to the Capacity of My In Box
>>
>>
>>At 09:46 AM 1/28/2006, Marty Lederman wrote:
>>
>>>
>>>Are there any "secessionist" fans among us?  Any non-patriots (as 
>>>if that appellation could possibly shed more light than heat)?  Am 
>>>I the only one who thinks that this listserv has increasingly 
>>>veered far from its ostensible subject and who yearns for the Good 
>>>Ol' Days when we actually used to have rigorous, interesting 
>>>discussions about, uh, constitutional law?
>>>
>>
>>
>>No, Marty, you are not the only one.  This talk of secession is 
>>exceedingly silly, except perhaps insofar as Sandy has used it to 
>>raise a theoretical question or two.  As a (capital-D) Democrat, I 
>>find myself almost completely in agreement with Eugene on the 
>>subject of secession and patriotism, and the political 
>>ramifications of secession talk.  I see the talk of secession 
>>mainly as an expression of extreme dismay over recent political 
>>developments rather than as a serious proposal, but come on -- suck 
>>it up and get on with what needs to be done to bring about change. 
>>In the immortal words of Joe Hill (perhaps soon to join Woody 
>>Guthrie as having been denounced on-list as a communist), don't 
>>mourn, organize.
>>
>>
>>A contribution to Marty's effort to bring us back to questions of 
>>constitutional law:  Does the "inherent authority" argument being 
>>advanced by the Administration in support of its positions that 
>>FISA is unconstitutional as applied to anti-terrorism surveillance 
>>and that Congress cannot restrict the President's authority to 
>>order cruel, inhuman, and degrading treatment or torture of 
>>suspected terrorists imply that the Uniform Code of Military 
>>Justice is also unconstitutional?
>>
>>
>>Bill Rich
>>
>>Univ. of Akron
>>
>>rich at uakron.edu
>>
>>
>>
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>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
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>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 
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