This letter from a variety of law professors does not appear to have much of a basis in law. In support of the proposition that that Congress may use its Article I spending power for the purpose of limiting the geography or troop levels in a war, these professors rely on three authorities - (1) the cases Bas v. Tigny, 4 U.S. 37 (1800) and Little v. Barreme, 6 U.S. 170 (1804); (2) the various Article I provisions which expressly grant Congress over various aspects of the military; and (3) various Vietnam era legislation limiting funding for various aspects of that war.

I cannot see how the cases Bas v. Tigny, 4 U.S. 37 (1800) and Little v. Barreme, 6 U.S. 170 (1804) can be cited for the proposition that Congress may use its Article I spending power for the purpose of limiting the geography or troop levels in a war.

Bas v. Tigny, interpreted two conflicting statutes enacted pursuant to Congress power to regulate the navy which set the level of amount of prize money to be paid to officers and seaman for recapturing a US ship taken by "the enemy." The issue before the Bas court was whether the United States was in fact engaged in an undeclared war with France such that this statute would award prize money for the recapture of a US ship taken by France. Therefore, this case had nothing to do with Congress' spending power nor can these statutes at issue be fairly said to be a congressional authorization for war or a limit on the President's command authority to deploy troops during such war.

Little v. Barreme interpreted a statute which made it a crime to sail a ship owned or controlled by a US resident into a French port and authorized forfeiture of such ship. Congress further authorized the Navy to enforce this act by seizing ships in violation. The issue before the Court was whether the statute authorized the Navy to seize a ship believed to be US owned while leaving a French port. The Court held that the statute did not provide such authority and the President did not have independent Article II authority to do so. Like Bas, this case had nothing to do with Congress' spending power nor can the statute at issue be fairly said to be a congressional authorization for war or a limit on the President's command authority to deploy troops during such war.

Nor can I see how citation to the various Article I provisions which expressly grant Congress powers over various aspects of the military can be used to support the contention that Congress may use its Article I spending power for the purpose of limiting the geography or troop levels in a war given that none of them actually provide Congress with such a power. The fact that the Constitution expressly grants Congress certain enumerated powers over the military hardly means that Congress may exceed that grant of authority to exercise unenumerated powers over the deployment of the military.

Finally, the professors cite to various Vietnam era legislation limiting funding for various aspects of that war. After negotiations with Congress, President Nixon agreed to allow Congress to enact the provisions without a veto. Therefore, there are no Court decisions ruling on whether the Congress actually had the Article I authority to enact such limits on the President's Article II CiC authority.

Given that Congress had never before claimed to posses such authority, there is no prior precedent to which we can seek guidance. Thus, we are left with the words of the Constitution.

Article II grants the President alone CiC authority to direct the deployment of troops during a war. There is no similar language in Article I.

As the law professors admit, the spending provisions of Article I do not permit Congress to impose unconstitutional conditions on the President, but claim that the Constitution does not state what those conditions are. I find this argument to be disingenuous.

The Constitution does not grant Congress concurrent authority with the President to command the deployment of the armed forces. Therefore, the Constitution has granted the President plenary authority over the deployment of troops. Where Article II grants the President plenary authority over an area, it is plainly unconstitutional for the Congress to enact legislation to strip him or her of that power.

Congress may declare war and then defund that war, but it has no power to command the deployment of the troops in the interim during that war.
 

Interestingly enough, the WSJ has an opinion piece on this very topic today. Hopefully in concert with fair use, they (Rivkin & Casey) say:

"What Congress cannot do, however, is direct how a president prosecutes a particular war -- including decisions about how many of the available forces to introduce into a theater of conflict. The Framers briefly considered vesting Congress with the power to "make war" but quickly thought better of it, limiting Congress instead to the power to "declare war." This, according to Constitutional Convention delegate Rufus King, was because "'make' war might be understood to 'conduct' it which was an Executive function."

The president is, in short, responsible for all tactical, operational and strategic decisions involved in war fighting. As the Supreme Court explained in a Mexican War case, Fleming v. Page (1851): "as commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy." Fifteen years later, concurring in the landmark case of Ex parte Milligan (1866), Chief Justice Salmon P. Chase put it more crisply still: "Congress cannot direct the conduct of campaigns.""

The two main points I would make are first, constitutionally it is quite more of an open question as to what Congress can do regarding troop levels outside of the spending power than our friendly law professors make it out to be with the text and history more towards the president having the power. Could the Congress in the Civil War have directed Lincoln to invade Mississippi instead of LA? To not invade Georgia? Can Congress now pass legislation saying the 101st Airborne be sent to Afghanistan as opposed to Iraq? The level and composition of troops are inherently a CIC kind of power.

Secondly, in practical terms, putting questions of troop levels and strategy in Congress' hands is just a bad idea. The decisions necessary to wage successful war cannot be made by committee. You ultimately do need one "decider." I would submit to the good professor that in many respects it is a good thing that the president can't be removed because it gives him the freedom to make tough and unpopular but necessary choices. If you look at Korea, had Congress run the war in 1950-51, they would certainly have appointed McCarthur, who's idea at the time was to expand the war into China including nuclear weapons. At the time, Truman was quite as politically weak and unpopular as the current president, and cries of "incomptetence" were heard just as loud, but history proved him right in getting rid of McCarthur and Congress wrong. History will tell with Bush as well.
 

jao:

his is one of Bart's favorite rhetorical devices: "Because there are no court decisions to the contrary, my own ipse dixit position must be right."

Hardly.

Given the lack of case law on this matter, my next recourse was to the language of the Constitution, not to my own policy opinions., which are irrelevant.

Because you declined to challenge my reading of the Constitution in this matter, I must assume you have no dispute with it.
 

Mike said...

Leaving aside any logical fallacies, after reading Bas, [Bart's] analysis is decidedly incorrect. Bas is replete with references to Congress' ability to declare a war limited in time, scope, geography, etc. Moreover, one of the statutes at issue related to paying sailors from the fund from sales of prizes recaptured from France. The statute, the Justices held, was specifically in reference to France, even if France was not specifically named. Thus, we have the Justices approving of a spending provision enacted explicitly in reference to a limited, "imperfect" war against France.

No, you do not get off that easy.

You claim that my analysis concerning Bas is wrong without giving any specifics. Here is my analysis again. Exact which of my conclusions, which I have bolded for ease of reference, do you claim is wrong and why?

I cannot see how the cases Bas v. Tigny, 4 U.S. 37 (1800) and Little v. Barreme, 6 U.S. 170 (1804) can be cited for the proposition that Congress may use its Article I spending power for the purpose of limiting the geography or troop levels in a war.

Bas v. Tigny, interpreted two conflicting statutes enacted pursuant to Congress power to regulate the navy which set the level of amount of prize money to be paid to officers and seaman for recapturing a US ship taken by "the enemy." The issue before the Bas court was whether the United States was in fact engaged in an undeclared war with France such that this statute would award prize money for the recapture of a US ship taken by France. Therefore, this case had nothing to do with Congress' spending power nor can these statutes at issue be fairly said to be a congressional authorization for war or a limit on the President's command authority to deploy troops during such war.
 

>Because you declined to challenge my reading of the Constitution in this matter, I must assume you have no dispute with it.

"Lack of evidence is evidence?" Well, maybe at the Rumsfeld School of Law.
 

Mike said...

To further highlight the erroneous analysis, here is a representative quote from Justice Chase's opinion:

Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.

[Mike]: While not directed specifically towards Congress' spending authority, it surely indicates that Congress has a great deal of control over our country's deployment of troops.

Justice Chase was offering dicta, which was not necessary for the resolution of the issue before the court and was not joined by the other Justices, who provided individual opinions. This dicta has no precedential value.
 

"Bart" DePalma is hard of reading:

I cannot see how the cases Bas v. Tigny, 4 U.S. 37 (1800) and Little v. Barreme, 6 U.S. 170 (1804) can be cited for the proposition that Congress may use its Article I spending power for the purpose of limiting the geography or troop levels in a war.

Here's what the professors' letter said:

"A question of debate is whether Congress's spending powers provide the only check that Congress holds in the context of ongoing military hostilities."

They go on to describe the various provisions, other than the Article I spending power, which argubly authorise Congress to set lmits of executive conduct in war, and cite the above cases in the context of that discussion.

"Bart", in his most usual fashion, picks up the goal posts, moves them, and then declares a touchdown.

If we burned all the "straw men" that "Bart" set up here, there's be no doubt at all about catastrophic global warming.

Cheers,
 

"Bart" DePalma says:

As the law professors admit, the spending provisions of Article I do not permit Congress to impose unconstitutional conditions on the President,...

Pardon me for saying so, but this is a restatement of the obvious: Congress is not permitted to do anything "unconstitutional". That's hardly an argument.

... but claim that the Constitution does not state what those conditions are. I find this argument to be disingenuous.

No. It's in fact the entire bone of contention here. But while I agree that the outlnes of presidential and Congressional authority are not explicitly defined in the Constitution, FWIW, I don't see where the professors even make the claim that "Bart" alleges they made. Seems "Bart" doesn't read stuff that is there, and then reads stuff that isn't there. Is he even reading from the same page?

Cheers,
 

"Bart" DePalma says:

Article II grants the President alone CiC authority to direct the deployment of troops during a war. There is no similar language in Article I.

Ummm, cite for this? Ought to be easy; the source document is only a couple pages long, and easily accessible on the Internet.

Cheers,
 

From the WSJ article:

"Fifteen years later, concurring in the landmark case of Ex parte Milligan (1866), Chief Justice Salmon P. Chase put it more crisply still: "Congress cannot direct the conduct of campaigns."

Dicta. FWIW, Justice Davis wrote the opinion there.

Cheers,
 

"Bart" DePalma:

[jao]: This is one of Bart's favorite rhetorical devices: "Because there are no court decisions to the contrary, my own ipse dixit position must be right."

...

["Bart"]: Because you declined to challenge my reading of the Constitution in this matter, I must assume you have no dispute with it.

Typo there; let me fix it:

"Because you declined to challenge my ipse dixit interpretation of the Constitution in this matter, I must assume you have no dispute with it."

Of course, this statement is factually false as well, as "Bart" should know from past colloquies.....

Cheers,
 

arne:

They go on to describe the various provisions, other than the Article I spending power, which argubly authorise Congress to set lmits of executive conduct in war, and cite the above cases in the context of that discussion.

Actually, on page two of their letter, the professors provide a laundry list of provisions from Article I which give Congress power over specific enumerated military matters, including the spending provision. However, as I noted in my original post, the professors do not claim that any of these provisions apart from the spending provision actually grant Congress the power to set limits on the geographical scope or the troop levels in a war. I can only respond to the Article I provisions to which the professor's actually cite.

If you are willing to put all the legal expertise you gained as an engineer to fill in the blanks for the professors by listing all the Article I provisions which you claim expressly grant Congress the power to set limits on the geographical scope or the troop levels in a war and why you think this is true, I am sure everyone will be interested in your analysis.
 

Wow!!! "Bart" and I agree on something:

Justice Chase was offering dicta, which was not necessary for the resolution of the issue before the court and was not joined by the other Justices, who provided individual opinions. This dicta has no precedential value.

The WSJ was full'o'it....

Cheers,
 

"Bart DePalma:

[I said]: Here's what the professors' letter said:

"A question of debate is whether Congress's spending powers provide the only check that Congress holds in the context of ongoing military hostilities."

They go on to describe the various provisions, other than the Article I spending power, which argubly authorise Congress to set lmits of executive conduct in war, and cite the above cases in the context of that discussion.

[Bart]: Actually, on page two of their letter, the professors provide a laundry list of provisions from Article I which give Congress power over specific enumerated military matters...

But you specifically kept inserting that "spending power" crapola. That's just dishonest.

If you want to argue about what the professors said, you shouldn't say this:

I cannot see how the cases Bas v. Tigny, 4 U.S. 37 (1800) and Little v. Barreme, 6 U.S. 170 (1804) can be cited for the proposition that Congress may use its Article I spending power...

and this:

Therefore, this case had nothing to do with Congress' spending power...

and this:

Nor can I see how citation to the various Article I provisions which expressly grant Congress powers over various aspects of the military can be used to support the contention that Congress may use its Article I spending power...

"Straw man", much?

If this is what gets passing grades as FSU Law School, it certainly tarnishes that august insttution a wee bit....

Cheers,
 

"Bart DePalma:

[I said]: Here's what the professors' letter said:

"A question of debate is whether Congress's spending powers provide the only check that Congress holds in the context of ongoing military hostilities."

They go on to describe the various provisions, other than the Article I spending power, which argubly authorise Congress to set lmits of executive conduct in war, and cite the above cases in the context of that discussion.

[Bart]: Actually, on page two of their letter, the professors provide a laundry list of provisions from Article I which give Congress power over specific enumerated military matters...

But you specifically kept inserting that "spending power" crapola. That's just dishonest.

If you want to argue about what the professors said, you shouldn't say this:

I cannot see how the cases Bas v. Tigny, 4 U.S. 37 (1800) and Little v. Barreme, 6 U.S. 170 (1804) can be cited for the proposition that Congress may use its Article I spending power...

and this:

Therefore, this case had nothing to do with Congress' spending power...

and this:

Nor can I see how citation to the various Article I provisions which expressly grant Congress powers over various aspects of the military can be used to support the contention that Congress may use its Article I spending power...

"Straw man", much?

If this is what gets passing grades as FSU Law School, it certainly tarnishes that august insttution a wee bit....

Cheers,
 

Sorry about the double post; Bloggered today....
 

"Bart" DePalma says:

I can only respond to the Article I provisions to which the professor's actually cite.

OK, where did they cite the "spending power" (past the introduction, where they said this power was "plain", and where they said they were going to address whether this was the "only" power)?

Cheers,
 

"Bart" decides to introduce personal qualifications once again:

If you are willing to put all the legal expertise you gained as an engineer to fill in the blanks for the professors by listing all the Article I provisions which you claim expressly grant Congress the power to set limits on the geographical scope or the troop levels in a war and why you think this is true, I am sure everyone will be interested in your analysis.

Yes, I am an engineer (with experience in the surveillance field no less). That harldy means this is the sole extent of my knowledge. Matter of fact, I have a neurobiology background (including published papers), and TA'ed statistics as well. You might have twigged to this state of affairs when I pointed out that you were wrong on your clain as to the holding in the Brown II case (not to mention your miscites of a case you'd cut'n'pasted from a Watergate minority report, and your [repeated] claim as to a "holding" in the Pentagon Papers case that the N.Y. Times could be prosecuted post-publication). A law degree is (obviously) no sine qua non for expertise in legal matters ... and your repeated mistakes here certainly cheapen that piece of paper.

Cheers,
 

JaO said...

BTW, there is no purely textual support for your reading, either. You conveniently read the C-in-C clause broadly and impute expansive powers that do not exist in the phrase, which Federalist 69 -- cited by Scalia in his Hamdi dissent -- said was "nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy."

The text makes only the President CiC over the armed forces. No one, including the professors writing the letter and Justice Scalia above, claim that directing the deployment of troops is not one of the most basic powers of a commander in chief of the armed forces.

While there is no bright line in the text...

I cannot conceive of a brighter line than the Constitution expressly granting a power to one branch and not to the others. Does anyone doubt that the Constitution has not established a bright line that only Congress has the power of the purse and only the Courts have the power to rule over cases in controversy?

The same applies to the President's CiC power. Unless a provision of Article I grants Congress the general power of CiC or a specific enumerated power to command the deployment of the armed forces, then they simply do not have that power.

And presidents have always honored congressional funding restrictions on specific deployments -- Cambodia, Vietnam, Somalia, etc.

A past president may not amend the Constitution by waiving the Article II power of future presidents any more than Congress may do so through legislation. The Constitution provides specific methods to amend its provisions.
 

Back to the point:

["Bart"]: If you are willing to put all the legal expertise you gained as an engineer to fill in the blanks for the professors by listing all the Article I provisions which you claim expressly grant Congress the power to set limits on the geographical scope or the troop levels in a war and why you think this is true, I am sure everyone will be interested in your analysis.

After you're listed all the Article II provisions that "expressly grant" the preznit "the power to set [upper or lower] limits on the geographical scope or the troop levels in a war".

After you, my dear Alphonse.

Cheers,
 

Bart writes:put all the legal expertise you gained as an engineer to fill in the blanks for the professors by listing all the Article I provisions which you claim expressly grant Congress the power to set limits on the geographical scope or the troop levels in a war and why you think this is true, I am sure everyone will be interested in your analysis.

That is such an obvious ad hominem I can't believe you tried to slip it in here. It really soils those valid point you raise. True, arne is facetious and sarcastic, but falling back on that kind of tactic leaves the impression of a lack of substance for other arguing points you raise.
 

The level and composition of troops are inherently a CIC kind of power.

This sort of ipse dixit is not very persuasive. It may seem so to you. To me it the level and composition of troops are inherently Congressional decisions. Part of the power to declare war is the power to decide how big that war is.

The decisions necessary to wage successful war cannot be made by committee.

Some such decisions, perhaps, but the decisions regarding whether or not to have a war and how big that war should be are inherently (see, I can do it too) legislative.
 

"Bart" DePalma misses the fly in the ointment:

The text makes only the President CiC over the armed forces. No one, including the professors writing the letter and Justice Scalia above, claim that directing the deployment of troops is not one of the most basic powers of a commander in chief of the armed forces.

Well, there is that little bit about Congress having the power to "declare war". A rational person might say that this in fact circumscribes the ability of Dubya to direct the deployment of troops in occupation of Luxembourg, for instance.

Then there is the additional little fact that you can't "deploy" an army that doesn't exist....

Cheers,
 

bitswapper:

True, arne is facetious and sarcastic, but falling back on that kind of tactic leaves the impression of a lack of substance for other arguing points you raise....

Yes, I'm a bit caustic, particularly in the face of dishonest rhetoric, but one can hardly accuse my comments of being fact-free....

Not to mention, while I harass "Bart" for his inanities mercilessly, I also contribute my own thoughtful (in not necessarily always "correct") comments to the post subject, and to other contributors here as well.

Cheers,


Cheers,
 

"Bart" DePalma:

The decisions necessary to wage successful war cannot be made by committee.

That may be a prudential argument against COngressional involvement, but it doesn't necessarily outweigh the prudential arguments for such involvement. Nevertheless, while prudential arguments can (and should) be used in any discussion of interpretation of the Constitution, it is hardly a compellng argument against a Constitutional construction to simply say that it seems unwise under the circumstances. I think that Prof. Levinson (if not others here) would agree.

Cheers,
 

Ooops, that was Scott, not "Bart". My apologies to both.

Cheers,
 

arne:

But you specifically kept inserting that "spending power" crapola. That's just dishonest.

What is dishonest and misleading are the professors providing a laundry list of unrelated Article I provisions to imply that Congress has the power to set limits on the geographical scope or the troop levels in a war while declining to point to any specific provision which expressly grants Congress this power.

I am not engaging in that game.

The professors have only cited to one specific Article I power - the power of the purse. That is the provision to which I am responding.

I notice that you spent another half dozen posts responding to my request that you provide what the professors neglected to - an Article I provision which grants Congress the power to set limits on the geographical scope or the troop levels in a war. Because you have not offered one, I have to presume that you, like JAO and the professors, cannot find such a provision because it simply does not exist.

BTW, I apologize for the dig about your being an engineer. I am still a little steamed over that stunt you pulled concerning my website. What I suggest is a truce on posts about one another's qualifications to post.
 

"Bart" DePalma:

[Arne]: But you specifically kept inserting that "spending power" crapola. That's just dishonest.

What is dishonest and misleading are the professors providing a laundry list of unrelated Article I provisions to imply that Congress has the power to set limits on the geographical scope or the troop levels in a war while declining to point to any specific provision which expressly grants Congress this power.

No, "Bart". What's dishonest is your repeatedly putting in "spending power" (and arguing that they were invoking the Article I spending power) when they specifically said they were talking about other provisions that may grant Congress oversight and decisional authority (and even listed them).

This is obvious to even the disinterested observer here. The "straw man" is your favourite MO, and it may give you jollies, but it hardly convinces anyone with more sentience than an amoeba.

You did the same thing WRT Glenn Greenwald over at Unclaimed Territory, insisting that Glenn had said things he didn't say and then callng him a liar (which you've done here to me as well). This got you booted there (after a lot of patience and forbearance on Glenn's part). Seems you haven't changed your ways.

Cheers,
 

"Bart" DePalma:

I notice that you spent another half dozen posts responding to my request that you provide what the professors neglected to - an Article I provision which grants Congress the power to set limits on the geographical scope or the troop levels in a war. Because you have not offered one, I have to presume that you, like JAO and the professors, cannot find such a provision because it simply does not exist.

As I said, "after you, my dear Alphonse".

And you might also answer this:

["Bart"]: Article II grants the President alone CiC authority to direct the deployment of troops during a war. There is no similar language in Article I.

[Arne]: Ummm, cite for this? Ought to be easy; the source document is only a couple pages long, and easily accessible on the Internet.

Cheers,
 

"Bart" DePalma:

BTW, I apologize for the dig about your being an engineer. I am still a little steamed over that stunt you pulled concerning my website.

Apology accepted. Now perhaps you'll apologise also for claiming (falsely) that I'd said I "represent[ed]" myself as an attorney and accusing me of ethical lapses in doing so. If you recall, that's what got me going on the subject of qualifications (and misrepresentation) on that thread. You should make it a sincere apology.

Then, when you're done with that, perhaps we can get back to the hot subject of whether there are Article II provisions that "expressly grant" the preznit "the power to set [upper or lower] limits on the geographical scope or the troop levels in a war".

Cheers,
 

"that I'd said I 'represent[ed]' myself" should have been:

"that I 'represent[ed]' myself"

Ooops.
 

JaO said...

Bart: The text makes only the President CiC over the armed forces. No one ... claim that directing the deployment of troops is not one of the most basic powers of a commander in chief of the armed forces.

But only you claim the president can "deploy" troops to Vietnam or Iraq after Congress expressly forbids it.

We may be talking past one another. How do you mean deploy?

My position posted above is: Congress may declare war and then defund that war, but it has no power to command the deployment of the troops in the interim during that war.

Are you thinking my position is something different?

Notably, no president has adopted your extreme theory in practice.

I would argue the opposite. The President has always determined how many troops to deploy and where to deploy those troops during every single war. Until the end of Vietnam, no Congress had attempted to arrogate that CiC power. That stark contrast argues that the Vietnam period is the exception rather than the rule.

Bart: The same applies to the President's CiC power. Unless a provision of Article I grants Congress the general power of CiC or a specific enumerated power to command the deployment of the armed forces, then they simply do not have that power.

Your arguments are risibly and tiresomely transparent. You make a hugely expansive interpretation of a single clause in Article II, but insist on the narrowest reading of Article I.

My friend, there is nothing expansive about my interpretation of Article II allowing the President the basic power to determine the deployment of troops over which he is CiC. No one, including yourself, disagrees that the President has this power.

I am applying exactly the same interpretation to Article I. If I am wrong, show me a provision of Article I which grants Congress general CiC power or a specific enumerated power to determine the deployment of troops. I do not think this request is at all unreasonable, nevertheless risible or tiresome. Prove your case.
 

Arne:Yes, I'm a bit caustic, particularly in the face of dishonest rhetoric, but one can hardly accuse my comments of being fact-free....

I didn't really intend to intimate that your responses were free of the burdens of logic and fact. Although the description 'bit caustic' may not at times encompass the scope of said posts...
 

Arne Langsetmo said...

Now perhaps you'll apologise also for claiming (falsely) that I'd said I "represent[ed]" myself as an attorney and accusing me of ethical lapses in doing so. If you recall, that's what got me going on the subject of qualifications (and misrepresentation) on that thread. You should make it a sincere apology.

I do sincerely apologize for posting that you had represented yourself as an attorney. I honestly thought that you had back on Glenn's blog and I thought that you were an attorney for most of the time we have fenced until I looked at your profile here. I was mistaken.

I can see why you were pissed, after all who wants to be known as an attorney these days...
 

"Bart" DePalma:

I am applying exactly the same interpretation to Article I.

Nonsense. You demand expicit language for Article I as to whether Congress can set limits on troops numbers or deployment, yet you try to slide but with these bare words from Article II for the same proposition:

"The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States..."

Here's your exact words:

["Bart"]: "Article II grants the President alone CiC authority to direct the deployment of troops during a war. There is no similar language in Article I."

Sadly enough for you, Article II says nothing about "deployment of troops".

Read this slowly: Neither Article I nor Article II go into any detail as to who gets to determine deployment nor numbers (although one might argue that the provision for "rais[ing] and support[ing] armies" in Article I certainly puts an explicit upper limit on the number that may be "deployed" in any place).

The argument that the "CinC" has plenary power to do these things is a pragmatic one (but not in the least the only such possible pragmatic argument for or against), but it is not mandated by the text of the Constitution.

Cheers,
 

JaO said...

I cannot conceive of a brighter line than the Constitution expressly granting a power to one branch and not to the others.

Gee, I can. How about "The President shall be commander in chief of the Army and Navy of the United States and shall have unrestricted authority to deploy their forces anywhere for any purposes, notwithstanding the expressed will of the Congress as duly enacted by statute."

The drafters of the Constitution could have went on for twenty pages listing the individual powers of a commander-in-chief. However, there is no need since the term has a well recognized meaning.

Once again, no one claims that the President does not have the power as CiC to deploy troops. Rather, the issue is whether Congress has that power. Therefore, interpreting the term CiC has no relevance here. You need to be looking in Article I for congressional powers.
 

bitswapper:

Although the description 'bit caustic' may not at times encompass the scope of said posts...

Oh, OK. <*takes bow*> Yes, I can be quite rough on people I don't respect. And a pretty tough live debater too. I got comments like "Just wow" for some of my 'performances' at Boalt. And yes indeed, ridicule is sometime not only the most appropriate tactic, but sometimes really the only appropriate tactic.

Cheers,
 

JaO said...

If Congress can defund a particular war, how can it not impose caps on that war?

As a legal matter, I do not believe Congress can enact a spending bill which tells the President how and where to deploy the troops. However, as a practical political matter, I imagine that Congress could effectively limit the size of a war by simply limiting the amount of money it is willing to spend on Iraq. For example, if Congress only provided enough funding to supply say 140,000 troops in Iraq, it would be difficult for the President to deploy more troops than he has supplies into the theater. However, the President can (and it appears did) deploy additional troops into Iraq using current funding and is now in a position to blackmail Congress with the hammer of not supporting the troops in the field if they decline to provide money to supply them.

Bart: The drafters of the Constitution could have went on for twenty pages listing the individual powers of a commander-in-chief. However, there is no need since the term has a well recognized meaning.

You are quite ready to abandon your alleged "textualism" whenever it suits your needs, but deny that privilege to the rest of us.

Come on now, you know that is not true. No one including yourself thinks that the term CiC in Article II does not include the power to deploy troops. This is a non issue.

What I have asked you to do is provide me with a general or a specific provision in Article I which provides Congress with this command power. I do not know how you can accuse me of denying you an interpretive tool when you have yet to offer any provision of Article I to interpret.

We know from Federalist 69 what was meant by the commander-in-chief assignment, which was simply to be the highest-ranking military officer. But that assignment did not extend to authorizing the scope of a conflict or choosing which enemies to engage, a power traditionally held by European kings but assigned to Congress in our Constitution.

I completely agree. The power to decide against which enemy to declare war is Congress' alone. The President may end up fighting a defensive war out of necessity before Congress can enact a declaration, but that is the only exception.

However, I distinguish between a declaration of war (or an AUMF, if you like) against Iraq and legislation compelling or limiting deployments of troops to fight that war.

As Scalia said in citing Federalist 69: "Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II.

I completely agree with Justice Scalia's take on the relative powers of the branches. Congress declares the wars and supplies the troops, the President commands the troops and fights the wars.

So, when it comes to textualist and originalist interpretation, we can either accept the view of Antonin Scalia and Alexander Hamilton, or we can go with your own ipse dixit definition.

That is going to be very difficult since there is no difference in the positions.
 

"Bart" DePalma:

For example, if Congress only provided enough funding to supply say 140,000 troops in Iraq, it would be difficult for the President to deploy more troops than he has supplies into the theater.

I don't think that's an obstacle. Dubya's sending in the escal... -- umm, sorry, "surge" -- without the armour and equipment needed (see also here and here ).

Cheers,
 

"Bart" DePalma says:

However, the President can (and it appears did) deploy additional troops into Iraq using current funding and is now in a position to blackmail Congress with the hammer of not supporting the troops in the field if they decline to provide money to supply them.

OIC. So the preznit can essentially force (or, to use "Bart"'s quaint word, "blackmail") Congress into spending.... Wouldn't that impinge on Congress's plenary "power of the purse"? I think there may be a Constitutional train-wreck coming. Maybe time to pay more attention to Prof. Levinson's thoughts....

Cheers,
 

JaO said...

Do you or do you not claim that "the power to deploy troops" includes the power to deploy troops in contravention of the limits imposed by Congress in Vietnam, Cambodia or Somalia?

Most definitely.

The Vietnam-era act specifically included in-country troop ceilings, not dollar ceilings. So your position is that those ceilings were unconstitutional? Funny that the executive abided by them.

The executive at the time was the felon Tricky Dick Nixon, hardly a champion of the Constitution or the law in general.

Moreover, Nixon was fighting for his political survival when most of these congressional overreaches occurred and was within months of resigning. Tricky Dick had no political capital to spend on picking a fight with a Congress considering his impeachment, so he folded.

Does the "power to deploy troops" allow the president to invade Iran without authorization from Congress?

Depends on the scenario. If you are talking about invading Iran to attack Iranians, the President needs a Congressional declaration of war or the AUMF equivalent. If the President is pursuing Iraqis hiding in Iran, he has all the authority he needs under the Iraq AUMF.

The idea of geographical restrictions on a war is absurd. Congress has declared war against a people, not a piece of real estate.

Does the "power to deploy troops" allow the president to invade or strike Iran in the face of an express congressional prohibition? There was such an express prohibition in Vietnam in 1975, which the executive branch decried but abided by.

Good comparison. The United States lost in Vietnam specifically because we self imposed geographic restrictions on our operations and allowed the enemy a sanctuary in NV, Laos and Cambodia where they could wait us out. This was the equivalent of going to war with Japan in WWII, but placing Japan, occupied China and the Philippines off limits to invasion.

Utterly insane.

So where did Congress authorize a war against sectarian factions fighting each other and their respective civilian religionists, within Iraq?

We went to war with Iraq, not some subset of the country.

Enough dancing.

If Congress does not like how the war has turned out, stop pussyfooting with finger wagging, non binding resolutions or unconstitutional attempts to take operational control of the troops from the President. Just pass the perfectly constitutional Feingold bill stopping all funding for the war in 6 months.

Political cowardice is no ground for rewriting the Constitution. If your goal is surrender in Iraq, be man or woman enough to admit your goal and take action to achieve that goal.
 

>>The idea of geographical restrictions on a war is absurd. Congress has declared war against a people, not a piece of real estate.

So I guess if some Iraqi "terrirsts" went and hid in Canada, Bush could start bombing Canada at will? Also, congress did not "declare war" -- even Gonzales doesn't claim that. It authorized the use of force with conditions attached. And believe it or not, it didn't authorize force "against a people" but a nation-state, with its own geographical boundaries, a piece of real estate called "Iraq."

>>The United States lost in Vietnam specifically because we self imposed geographic restrictions on our operations

You sure it wasn't the liberal media and Jane Fonda?
 

porter29 said...

Bart: The idea of geographical restrictions on a war is absurd. Congress has declared war against a people, not a piece of real estate.

So I guess if some Iraqi "terrirsts" went and hid in Canada, Bush could start bombing Canada at will?

My friend, we are currently hunting al Qaeda in dozens of countries, including Canada. Why would be do any less for Iraqi terrorists? Why would we want to?
 

>>My friend, we are currently hunting al Qaeda in dozens of countries, including Canada.

So you are honestly equating "hunting for terrorists" with extending military action in a live conflict across national borders? And how exactly are we "hunting for terrorists" again? With the US military on the ground against the wishes of Canada? Wait, we are "at war" with Canada and dozens of other countries? Bush was authorized by congress to bomb Canada in the "hunt for terrorists?" And we are already doing that??

Wow. This is all news to me.
 

porter29 said...

So you are honestly equating "hunting for terrorists" with extending military action in a live conflict across national borders?

The difference between the two is only a matter of degree - what the military calls high and low intensity conflicts. You do not need to drop bombs and roll tanks to be at war.

If the Canadians were sheltering al Qaeda rather than cooperating with us to capture them, I assure you we would go after al Qaeda even in Canada.

This is not a game or some mental exercise of "what if." We are engaged in the most total of wars with a enemy that does not grant quarter. We may not have had an enemy this ruthless since the Apache.
 

JaO said...

Bart, You say on the one hand that Congress can define the scope of a particular war in a declaration or AUMF, yet you claim in other comments that there is a supreme "power to deploy troops" that overrides this congressional authority. Which is it?

I will try again...

Congress' ability to determine the scope of a war is limited to determining who the enemy is in a declaration of war.

How to go about prosecuting that war is determined by the President as CiC. In the area of operational control over the military, the President does not "override" congressional authority because Congress has no authority in this area to begin with.
 

>>The difference between the two is only a matter of degree - what the military calls high and low intensity conflicts.

So is the US military currently engaged in a high- or low-intensity military conflict in Canada? It is "only a matter of degree" between the Canadian government assisting the US in some way in "hunting for terrorists" within Canada (through domestic Canadian law enforcement activities, for example) and the US military BOMBING and INVADING Canada in the "hunt for terrorists?"


>>We may not have had an enemy this ruthless since the Apache.

Hitler? Stalin? Mao? They all just turned over in their graves.

>>Congress' ability to determine the scope of a war is limited to determining who the enemy is in a declaration of war.

You forgot the "because I say so" at the end of that sentence. Besides the blindingly obvious point that even by the "logic" of your statement Congress limits the geographical scope of the war by "determining who the enemy is," i.e., a particular state.
 

JaO said...

Congress' ability to determine the scope of a war is limited to determining who the enemy is in a declaration of war.

And your source for that is?

Every single declaration of war or AUMF by Congress of which I am aware.

Wars limited in their geographic scope were not uncommon in the Founders' time. Wars might be declared to be fought in each other's colonies but not the home ground, for example.

Do you have a specific example?

In any case, why do you even think congressional authorization even neans anything, given the magical "power to deploy troops" you have discovered in the penumbra of the commander-in-chief clause. Why could the president not just "deploy" the army to Iraq (or Iran, etc.)?

Because Article I grants Congress and not the President the power to declare war. This is the reverse of my argument that only the President has operational control over the troops because Article II makes the President and not Congress CiC.

Bart: If you are talking about invading Iran to attack Iranians, the President needs a Congressional declaration of war or the AUMF equivalent.

I happen to agree. But that makes no sense when read in conjunction with your other assertions.

That also means the President needs express authorization to attack Vietnam. Yet you claim he could attack Vietnam in the face of an express prohibition against it! That is an absurdity.

You are confusing the constitutional initial authorization to go to war with later unconstitutional attempts to take over the President's Article II operational control over the military during the war. Article I grants Congress the power for the former but not the later.
 

"Bart" DePalma:

Congress has declared war against a people, not a piece of real estate.

Yeah, Moooooslims ... uh, oh, right, sorry, I'm forgetting my NewSpeak™: "Islamofascists".

Cheers,
 

"Bart" DePalma is afraid of his own shadow:

This is not a game or some mental exercise of "what if." We are engaged in the most total of wars with a enemy that does not grant quarter.

Yessss, yesssss, those IslamoTerro(Pinko)Fascists™, hiding in their caves, with their Kalashnikovs and Korans, are a far more deadly and serious threat to the Yooo Esss of Aye than, say, the Nazis or Rooskies ever were. Of course, the Confederates never were a threat; hell, they should have won, and we'd 'a been better off, eh?

They're coming ta getcha, "Bart"!

Boo!

Cheers,
 

JaO said...

So, I ask you again, what is the authority to engage the new enemy Bush named in his SOTU speech: Shiite and Sunni "extremists" operating within that nation today, who primarily are committing violence against the respective civilians of each religion?

Once again, the AUMF declared war against Iraq, not some subset of the population. If you ask the question again, just cut and paste this answer at the end of the question.

Meanwhile, I note that you continue to tie yourself into contradictory knots over congressional authority. You say opponents of the war should forthrightly support Feingold's proposed funding cutoff, yet you continue to claim that similar funding cutoffs in Vietnam, Cambodia and Somalia were somehow unconstitutional (even though they were passed by large bipartisan majorities and honored by presidents of both parties.)

Once again, I stated that the legislation which set geographical limitations and capped the number of deployed troops were unconstitutional. If you are referring now to legislation completely defunding the Vietnam War ala the Feingold bill, then both are constitutional.
 

JT Davis said...

De Palma: The United States lost in Vietnam specifically because we self imposed geographic restrictions on our operations and allowed the enemy a sanctuary in NV, Laos and Cambodia where they could wait us out.

Can you cite a source for this theory?

You do not need a source to make an argument.

Who is this "we" that imposed these geographical restrictions on our operations?

LBJ refused to allow a ground invasion of North Vietnam and its neighbors because he was frightened that it would lead to a Chinese intervention like in Korea.

Did we not conduct operations in Cambodia (and Laos) "denying the enemy sanctuary"? (Nixon, 1970)

Nixon ordered a temporary incursion into Cambodia to disrupt a sector of the Ho Chi Minh trail. There was not intent to engage and defeat the NVA in NV.

Do you now claim that invading North Vietnam would have been a good idea and resulted in victory?

If you go to war, the only acceptable result is victory. Victory was very probable if we fully mobilized, invaded North Vietnam, defeated the NVA in a few months and then rounded up the population in camps like the British did to the Boers until the guerillas starve or surrender.

This country has the military power to win nearly any war it chooses to enter into. The question is whether we have the will to do what it takes to win.
 

Bart,

Your ignorance regarding US military operations in Cambodia is stunning. The US military was involved in operations in Cambodia for almost 8 years, starting in 1965. There were more than 2,000 ground incursions during the Johnson administration by CIA and special forces, supplemented by aerial bombing. Nixon took it to carpet bombing, dropping more bombs (in tonnage) than the combined Allied output in WWII.

The fact that you are using the Boer War and concentration camps as some sort of model for what the US should do in Iraq reveals just how twisted and demented some elements of the right have become in this country. It is fitting, though, that the war that gave us the term "jingoism" is your model. Your complete lack of understanding of the war we are fighting, who it is actually against, and the nature of the historical situation in this and similar conflicts in the past would be comic if it weren't so dangerously misguided.

The US should round up the Iraqi population in concentration camps, by the way, because that will surely allow democracy to flourish and would "drain the swamp" of anti-Americanism and "terrorists."
 

By the way, we are all waiting for Bart's speech about 'chopping of the arms of Iraqi children and placing them in a pile' a la Brando in "Apocalypse Now" and how that would surely lead to victory...if we only had the stomach to do it.
 

Bart,

LBJ refused to allow a ground invasion of North Vietnam and its neighbors because he was frightened that it would lead to a Chinese intervention like in Korea.

JT Davis has addressed this much better than I could, but I will pose a question. Do you think such fears were well-founded?

Victory was very probable if we fully mobilized, invaded North Vietnam, defeated the NVA in a few months and then rounded up the population in camps like the British did to the Boers until the guerillas starve or surrender.

Um, this is exactly what we were doing in South Vietnam, and it wasn't working very well. What you are proposing amounts to doubling down. (Literally, same strategy, twice the enemy).

Then there is the matter that North Vietnam was a Soviet ally and this was during the Cold War. There was a strong policy on both sides during the Cold War to avoid anything that could bring on a direct superpower confrontation because both sides had nuclear missiles (remember those?)

Significantly, when the Soviet Union was in a similar situation in Afghanistan, fighting an enemy with a sanctuary and arms supplies in Pakistan, they, too, refrained from invading Pakistan. Presumably the reason was the same; we were allied with Pakistan and they feared a superpower confrontation in an age of nuclear missiles.
 

"Bart" DePalma misstakes an assertion ("ipse dixit") for an argument:

["Bart"]: The United States lost in Vietnam specifically because we self imposed geographic restrictions on our operations and allowed the enemy a sanctuary in NV, Laos and Cambodia where they could wait us out.

[jt davis]: Can you cite a source for this theory?

["Bart"]: You do not need a source to make an argument.

Cheers,
 

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