War Powers Act

[Steven Jamar]

Faulty dilemma.  Strawman. (Mis)application of the "law"of the excluded middle.

It is not all or nothing.  Clerk or dictator.  It is not a case of
unlimited power over what bombs to make, what ships to make, the shape
of the military, the mission of the military, the application of
military power.  Congress has a significant role to play well short of
deciding tactics on the ground.  Banning a particular tactic or
strategy (e.g. torture, first strike with nuclear or biological
weapons) is well within the power of congress under its enumerated
powers and are at least as fully within  the power to declare war and
provide for the military as it is within the three-word phrase
"commander in chief."

And I would differ about civilian control of the military -- indeed
the danger of a military not under civlian control is part of the
reason not to have a standing military.

The issue is not whether dictator or mere clerk was intended by the
framers.  They understood complexity and checks and balances and the
need for commanders to make decisions.  But they also understood the
importance of the people deciding, not just one person or clique.

Steve


On 4/7/07, Sean Wilson <whoooo26505 at yahoo.com> wrote:
>
>
> Steve:
>
> 1. the CIC clause was not about having a chief civilian military bureaucrat
> (which today more fits the description of the Secretary of Defense).
> Congress had only enumerated powers in a world where the commerce clause was
> not a constructive fiction. Every Congressional power that you mention --
> treaties, declaring war, funding the armed forces, providing internal
> regulations for the military -- is specifically enumerated. Congress was
> never empowered to dictate military maneuvers or command decisions.
>
> 2. The simple answer to your question is that the framers created an
> independent presidency with a delegated Article II power to command the
> details of a lawful battle. The president in this respect is not simply a
> civilian clerk waiting for Congress to order him how to carry out his
> Article II power. (If this were otherwise, Congress could delegate
> war-making rules an administrative agency. Could you imagine the president
> having to check with the board of war whether he could drop a bomb? This
> agency could have more power than the secretary of defense and NSA. I'm
> curious -- why not do this to every presidential power. Why not write a code
> for appointing justices [you must appoint only moderates]? Why not write a
> code for how to negotiate treaties [any clean air treaty must be agreed
> to]?
>
> 3. Some historical stuff. The issue here is whether the framers intended
> that the executive be a mere clerk. Although it is true that the framing
> generation had political scholars who saw the executive as a kind of clerk
> or subordinate of the legislature -- Madison being the poster child -- it is
> not true that the final compromise reflects such a creation. It is also true
> that there is a split in the framer's political culture about this, which
> should come as no surprise, given that the executive was the most
> contentiously debated subject (contentious meaning frequency of debate with
> no resolution). It was only 11 days before the convention ended that they
> could finally agree how to select it. Remember, there had never been an
> American presidency before the framers created it. They didn't even know
> what to call it. It was, in truth, part King, part clerk -- and which side
> of the fence it would favor only history would tell. The vocabulary of the
> era really tells the story: "chief magistrate" (meaning, essentially, a
> glorified clerk) or "his excellency" and "his mightiness" (royal accolades).
> Truthfully, one of the differences between federalists and anti-federalists
> (republicans) of the era is precisely upon which side of this debate to
> emphasize. Jeffersonians wanted a people's clerk (only in rhetoric, of
> course -- look what Jefferson actually did) while the federalists were more
> likely to follow a royal kind of metaphysics (non-partisan elections without
> campaigns, public processions with "his excellency," and unfortunately, the
> sedition act, etc).
>
> My point, though, is that the view of the president as a clerk of the
> Congress was only a faction in post-colonial America that was never able to
> establish this as either hegemonic or part of the legal superstructure.
>
> (... sorry for the long post. I've just been insane today.)
>
> Regards
>
> 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/
>  ________________________________
> Don't pick lemons.
>  See all the new 2007 cars at Yahoo! Autos.


-- 
Prof. Steven Jamar
Howard University School of Law