War Powers Act

[Steven Jamar]

I find this defense of torture and tactical nuclear strikes  
unconscionable and cannot imagine that the constitution gives such  
power to anyone under the guise of separation of powers.  Congress  
can and should ban torture, inhumane treatment of prisoners, and so  
on.  As do international treaties.

The President cannot have such plenary powers even in time of war.

The categorical assertion of unlimited dictatorial powers cannot be  
what the framers had in mind and cannot be what the constitutional  
democracy is all about.

Steve

On Apr 7, 2007, at 11:07 AM, Sean Wilson wrote:

> Marty:
>
> Not exactly what was asked of you, but why not go further .....
>
> There are numerous reasons beyond the claims of Nixon and Jimmy  
> Carter to believe that the 60 day limitation in the War Powers Act  
> is unconstitutional. The most forceful is to understand that the  
> commander-in-chief clause is a delegation of power, not  a  
> bureaucratic captaincy. That is,  if Congress can PROSPECTIVELY  
> prescribe how presidents choose to command wars -- what weapons to  
> use, how to locate the enemy, whether to read them miranda rights,  
> etc -- you will transform the CIC power into a clerical power. If  
> Congress chose to write a comprehensive code of war, the president  
> wouldn't have a CIC power any longer -- he or she would simply be  
> using the "faithfully execute" power when "bureaucrating" the war.  
> Hence, there are great constitutional problems with Congress trying  
> to specify the details of the work for any legal war. This might be  
> the way that a parliamentary system wages war, but a separation of  
> powers regime that gives a substantive grant of war management to  
> the president is different.
>
> Secondly, there is a strong reason not to believe the 60-day  
> limitation is constitutional for what I would call "law and  
> society" reasons. War is the quintessential activity that should  
> not have a bureaucratic code. It isn't sport or industry. You  
> cannot determine what is necessary for fighting in the future. As  
> soon as one political generation lays down in writing the rules  
> that might work for its own experience, it will strap the next  
> generation that has to face an unsafe world once again.
>
> I realize that Congress has passed statutes that attempt regulate  
> war. But I do not accept that much of the efforts to control the  
> details of the commander's work in a legal war will be upheld if  
> challenged. I do, believe, however that Congress has the power to  
> STOP any war using the same procedure that it can start it. I  
> believe that comes by implication in the declaration power. (It can  
> also pull funding). But I think that allowing Congress to write a  
> prospective code of what command decisions should be made is  
> clearly unconstitutional.
>
> Regards.
>
> There
>
> Dr. Sean Wilson, Esq.
> Penn State University
> Website: http://ludwig.squarespace.com/home/
> Email discussion group:  http://groups.yahoo.com/group/TheLudwigGroup
> SSRN papers: http://ssrn.com/author=596860
> Conference papers: http://ludwig.squarespace.com/research-agenda/
>
>
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-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
Washington, DC  20008	                          http://iipsj.com/SDJ/

"If we are to receive full service from government, the universities  
must give us trained [people].  That means a constant reorientation  
of university instruction and research not for the mere purpose of  
increasing technical proficiency but for the purpose of keeping  
abreast with social and economic change. . . .  Government is no  
better than its [people]."

William O. Douglas


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