The Article II Argument

J. Noble jfnbl at
Tue Jan 31 16:38:32 PST 2006

I think you need a less defensible claim of authority and fewer 
graceful exits before it's a constitutional crisis. Congress can, and 
probably would, authorize the powers that the President has 
preemptively claimed. If push comes to shove, the Administration will 
find a way to live with the outcome -- like the McCain Amendment as 
amended. My question assumed the president might have some special 
"wartime" authority, whether by Art. II insistence or Art. I 
allowance. My question was more basic -- Is there a constitutional 
approach to the definition of "war" for purposes of determining the 
President's entitlement to exercise wartime authority?

My thought is that the controversy over the source and scope of 
wartime authority is swallowed whole by the assumed authority to call 
it a war and define the battlefield. It seems foolhardy to describe 
the President's constitutional authority "in the event of war" 
without reference to the nature and scope of a particular war, except 
in the broadest possible terms, as against every imaginable exigency. 
Whether that authority is assumed by Article I fiat, under Article II 
grant, or by leave of an Article III court, all that ever really 
matters is the source of authority to determine its occasion -- the 
event of war. The war against terror was "declared" long after the 
commencement of hostilities by terrorists. The war in Iraq was 
"declared" with the commencement of hostilities by the President. In 
either case, judicial review could only take judicial notice of 
continuing hostilities. Isn't this like asking whether a president's 
offense is impeachable? If the constitutional question is whether 
there's a war that justifies the President's exercise of wartime 
authority, and if it doesn't depend on an Art. I, Sec. 8 declaration 
of war, does the Constitution suggest an answer other than it sure 
looks that way.

Prof. Rich's point was that the Administration's argument that 
Congress cannot limit the President's wartime authority might as 
readily be raised against Congress' attempt to limit his peacetime 
authority. My concern is that when we let the Administration frame 
the constitutional debate in terms of the scope of the President's 
wartime authority under the direst exigencies, it obscures the fact 
that we're really defining the scope of his unqualified and unchecked 
authority -- in war and in peace -- unless there's a constitutional 
check on the President's discretion to decide when and where we're at 
war. The President doesn't have to argue that Congress can't limit 
his peacetime powers and domestic authority if he can simply declare 
us at war against an enemy within.

I'm generally sanguine about the Constitution's modern-day 
shortcomings that rankle Sandy; and more often amazed by how well it 
still works almost a quarter-century later. But it seems to me that 
the combined authority of the civilian President and military 
Commander in Chief, devised with George Washington in mind, was 
strained in the Civil War, stretched to the breaking point in WWII, 
disregarded in Korea and Vietnam, and forgotten in the transition 
from Commander in Chief to Leader of the Free World. The authority of 
Commander in Chief envisioned for George Washington is hopelessly 
anachronistic in a war against a global network with an invisible 
army and inexhaustible supplies of anger and ideology; where the 
contested territory is hearts and minds, and the battlefield 
stretches from desert to desktop; where the lines of attack are 
commerce and communications, and the other side wins if we blow them 
up. But the President's wartime authority as Commander in Chief has 
to be commensurate with the hostile threat to national security -- 
whatever it takes. Washington would be stunned by the resources and 
weapons the Commander in Chief commands today in time of war, but 
nothing would shock him as much as the President's power to declare 

John Noble

At 9:06 PM -0700 1/30/06, Jeff Renz wrote:
>That (the the conflict between Art I, s. 8, cl. 14 and Art. II) is 
>the conflict, isn't it?  I note that Bybee treated 18 USC 2340 & 
>2340A as "civilian" criminal statutes, rather than as, say, a 
>provision of the UCMJ.  FISA is a little different from 2340, since 
>it expressly refers to war time.  John accurately points out that 
>this Administration recognizes no boundaries on the President's war 
>power, once war is declared.  Torture?  "I get to decide." 
>Eavesdropping?  "I get to decide."  Executing POWs?  "I get to 
>decide (and besides, they're illegal combatants.)"  What if, instead 
>of torture, which tends to be ineffective as a tool, we thought we 
>could save a couple of lives by raping a detainee's wife or shooting 
>his children in front of him?  "Article II."
>The only power the Administration concedes to Congress is the power 
>to cut off funding.  The last time that occurred, as far as I know, 
>was shortly before the English Civil War.  According to May, no 
>Parliament has withheld supplies since the Glorious Revolution.  So 
>we can be reassured that Congress will withhold funds just before 
>the ship of state capsizes.
>I think that this is not a constitutional moment.  It is a 
>constitutional crisis.  Was it Hamilton or Story who argued that the 
>end of a Republic is preceded by glory in arms?
>Prof. Jeffrey T. Renz
>School of Law
>The University of Montana
>Missoula, Montana  59812
>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 
>>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 
>>Bill Rich
>>Univ. of Akron
>>rich at
>>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:
>>>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 
>>>----- Original Message -----
>>>From: <mailto:rich at>William D Rich
>>>To: <mailto:conlawprof at>conlawprof at
>>>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
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>>To post, send message to Conlawprof at
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>>Please note that messages sent to this large list cannot be viewed 
>>as private.  Anyone can subscribe to the list and read messages 
>>that are posted; people can read the Web archives; and list members 
>>can (rightly or wrongly) forward the messages to others.
>To post, send message to Conlawprof at
>To subscribe, unsubscribe, change options, or get password, see 
>Please note that messages sent to this large list cannot be viewed 
>as private.  Anyone can subscribe to the list and read messages that 
>are posted; people can read the Web archives; and list members can 
>(rightly or wrongly) forward the messages to others.
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