Balkinization: Life in a constitutional dictatorship

Comments:

Though I agree with you, I feel it's important to point out:
1. the American public re-elected this individual after four years of evidence of incompetence and fraud.
2. the members of Congress appear unwilling to confront the Administration (i.e., assert their authority) head-on except in trivial ways.

So while I agree that it would be helpful to make some changes in the system, the fault lies not in the rules so much as the failure of the participants (us). We are all to blame for Bush, and a set of rules absent good faith is just a nice looking piece of paper.

# posted by

sparky : 3:11 PM

Democracy? It's more like democrazy.

# posted by

EvilPoet : 4:09 PM

The Administration also notes that provisions of law that purport to direct or prohibit international negotiations, covert action, or use of the armed forces are inconsistent with the Constitution’s commitment exclusively to the presidency of the executive power, the function of Commander-in-Chief, and the authority to conduct the Nation’s foreign policy.

Wow, they've already drafted the signing statement.

You reckon Addington's had a rubber stamp made up with that all-purpose language?

# posted by

Anderson : 4:13 PM

The dictatorsh.... -- umm, sorry, "maladministration" -- says:

The Administration also notes that provisions of law that purport to direct or prohibit international negotiations, covert action, or use of the armed forces are inconsistent with the Constitution’s commitment exclusively to the presidency of the executive power, the function of Commander-in-Chief, and the authority to conduct the Nation’s foreign policy.

They're reading a different constitution than the one Choper had us studying....

Cheers,

# posted by

Arne Langsetmo : 5:03 PM

Prof. Levinson:

"He is an arrogant, ignorant, su[pr]emely confident man, utterly unaccountable to ordinary political constraints save for entirely unlikely and certainly unsuccessful efforts at impeachmment."

I hate ad hominem attacks ............. but this seems to be a useful synopsis of the present predicament.

Where the "self confidence" comes from, though, is within the realm of psychological speculation. It certainly isn't warranted by anything he's ever done in his life....

Cheers,

# posted by

Arne Langsetmo : 5:12 PM

The Administration also notes that provisions of law that purport to direct or prohibit international negotiations, covert action, or use of the armed forces are inconsistent with the Constitution’s commitment exclusively to the presidency of the executive power, the function of Commander-in-Chief, and the authority to conduct the Nation’s foreign policy.

I hate to introduce the actual Constitution in a constitutional discussion, but could one of the "outraged" here actually point to any provision of Article I which grants Congress the powers "to direct or prohibit international negotiations, covert action, or use of the armed forces?"

# posted by

Bart DePalma : 5:19 PM

Sparky:

1. the American public re-elected this individual after four years of evidence of incompetence and fraud.

Both the M$M and the Republican Congress managed to keep a lid on it pretty well. Had we had a responsible Congress and a less sycophantic media, he'd be toast.

Not to mention, had he lost as he narrowly did in 2004 (and did in 2000), he would have been the first preznit ever to be turned out in "wartime". That "wartime" crapola is like an instant 20% in the polls (in the misguided sentiment that a nation should hang together and hang tough in war), and it says a lot that Dubya managed to make it close and Kerry managed to make it a game. The Democratic candidate in 20004 was initially thought to be just a goat for the slaughter. Dubya's been milking the "GWOT" for all it's worth politically pretty much from the start ... and 3800 U.S. soldier and countless thousands of others are dead because of it ... and it looks like it is not going to stop.

Cheers,

# posted by

Arne Langsetmo : 5:20 PM

"Bart" DePalma:

... could one of the "outraged" here actually point to any provision of Article I which grants Congress the powers "to direct or prohibit international negotiations, covert action, or use of the armed forces?"

Spelling mistake. Should be:

"... could one of the "outraged" here actually point to any provision of Article II which grants the preznit the exclusive powers "to direct or prohibit international negotiations, covert action, or use of the armed forces?"

You're welcome. No charge.

Cheers,

# posted by

Arne Langsetmo : 5:23 PM

arne:

When Article II grants these powers to the President and Article I does not grant them to the Congress, then that is pretty exclusive.

The reverse is also true.

Whether you like it or not, each branch has plenary powers not shared by the other branches.

# posted by

Bart DePalma : 5:27 PM

"The Administration also notes that provisions of law that purport to direct or prohibit international negotiations"

The Constitution does seem to be pretty clear about the President's authority to engage in negotiations. Congress, of course, retains the authority to reject the outcomes of such negotiations... But it can't prohibit them, and any direction it gives is purely in the way of advice.

On the rest, I'll have to differ with Bart: The power to declare war is delegated solely to the legislative branch, and that delegation would be moot if the President were to have the authority to wage wars in the absence of such a declaration.

But Sparky is right about the implications of this. This is a problem of political culture, not constitutional design. What's the point in giving Congress more tools to rein in the Executive, if they don't have the will to use the entirely adequate tools they already have?

*********

BTW, Prof, you mean to get back to that other blog of your's?

# posted by

Brett : 5:54 PM

"Bart":

["Bart"]: ... could one of the "outraged" here actually point to any provision of Article I which grants Congress the powers "to direct or prohibit international negotiations, covert action, or use of the armed forces?"

When Article II grants these powers to the President and Article I does not grant them to the Congress, then that is pretty exclusive.

[Arne]: Where?!?!? Quote (from the Constitution), please.

U.S. Constitution, Article I:

The Congress shall have power to ...

... [t]o declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;...

U.S. Constitution, Article II:

He [the preznit] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur...

As I said, different constitution.

Cheers,

# posted by

Arne Langsetmo : 6:18 PM

Brett:

But it can't prohibit them, and any direction it gives is purely in the way of advice."

"... and consent".

Cheers,

# posted by

Arne Langsetmo : 6:21 PM

Arne, negotiating does not a treaty make. You ought to know that. The President can negotiate all he likes, it doesn't mean a damned thing until the Senate ratifies. Kind of like Kyoto; Clinton could negotiate that treaty, in spite of a 95-zip vote of the Senate, but it was legally meaningless.

What exactly are you asserting as the contrary position? That Congress can dictate what the President can and can't say? Talking, that's all negotiating is.

# posted by

Brett : 7:39 PM

Arne:

BD: I hate to introduce the actual Constitution in a constitutional discussion, but could one of the "outraged" here actually point to any provision of Article I which grants Congress the powers "to direct or prohibit international negotiations, covert action, or use of the armed forces?"

arne: U.S. Constitution, Article I:The Congress shall have power to ... [t]o declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;...

The power to declare war is the power to start a war where none exists, Letters of marque are a subset of the power to authorize war. Congress has no power in law or reality to prohibit a war when an enemy is already warring against us.

Moreover, this provision does not grant the Congress the power to direct foreign policy or military operations. Those are plenary powers of the President.

# posted by

Bart DePalma : 9:22 PM

Let us switch the branches for illustrative purposes...

Imagine that the President threatens to unconstitutionally sign an executive order allocating funding for the Iraq War.

In response, a rightfully furious Congress enacts a resolution stating: "Congress notes that provisions of executive orders that purport to allocate funding for the Iraq War are inconsistent with the Constitution’s commitment exclusively to the Congress of the power of the purse."

Would any of you be posting that the Congress was running a "democrazy," "dictatorship" or a "maladministration" simply because it rebuked the President for an unconstitutional power grab?

Well, maybe if the Congress was GOP and the President was a Dem...

# posted by

Bart DePalma : 9:36 PM

Brett:

Arne, negotiating does not a treaty make. You ought to know that. The President can negotiate all he likes, it doesn't mean a damned thing until the Senate ratifies....

Not entirely true; there are some treaties that pay attention to who signs, so signing is not of no legal effect...

That being said, you're right, treaties require Senate consent to formally bind the U.S. (until the preznit decides on his own to ignore them).

But where does it say in the Constitution that the preznit has a plenary power to "negotiate"?

Cheers,

# posted by

Arne Langsetmo : 10:33 PM

"Bart":

The power to declare war is the power to start a war where none exists, Letters of marque are a subset of the power to authorize war. Congress has no power in law or reality to prohibit a war when an enemy is already warring against us.

Moreover, this provision does not grant the Congress the power to direct foreign policy or military operations. Those are plenary powers of the President.

We need a numbering scheme here, folks, and a list of links to "Bart"'s famous list of oft-repeated and unsupported assertions (if not factual or legal errors), and the prior responses.

Then, we could just flag 'em when they come up again with a "24" ... or "33" ... and refer in a sufficient and comprehensive but concise manner to whatever piece of malarkey "Bart" keeps spouting even though everyone here's heard it a million times....

Cheers,

# posted by

Arne Langsetmo : 10:38 PM

"Plenary" There, that's the first time I've used that word in years.

As for the rest of it, Bart is clearly wrong. There's scarcely any point in giving Congress, and only Congress, the power to declare war, if the President is empowered to wage war without declaration, and not wage it in the face of a declaration. That's the sort of sophistry that has rendered the Constitution a virtual dead letter.

# posted by

Brett : 11:43 PM

I think Bush views himself as more of a term-limited dictator than say, a constitutional dictator (unless the constitution is restricted to the section involving term limits).

Bush does seem to have some understanding of the time-limitation on his office.

It's the rest of the Constitution that presents difficulties to him. Too much ambiguity. Too much history. Too many restrictions on the unfettered whims and fiats of one man rule. He is after all the Great Decider.

# posted by

Franklin : 12:08 AM

Brett:

here's scarcely any point in giving Congress, and only Congress, the power to declare war, if the President is empowered to wage war without declaration, and not wage it in the face of a declaration. That's the sort of sophistry that has rendered the Constitution a virtual dead letter.

It's not sophistry. The Constitution assumes at a minimum some fealty to the precepts by the various parties. It is not "self-executing" and certainly not self-policing. I pointed this out in Choper's ConLaw class, and he replied in essence that, for purposes of the course at least, we need to assume some adherence to the Constitution and voluntary comity between the branches, otherwise the course would quickly fall apart as to limits on subject matter. I e-mailed him recently, asking if he's reconsidered the relevance of such discussion, and he agreed to talk ... but I haven't had a chance to talk to him yet.

Cheers,

# posted by

Arne Langsetmo : 12:18 AM

Imagine a movie about a summit meeting of the Presidents of US, Iran and North Korea. It might segue into an augmented "Who's on first?" routine of Abbott and Costello. If Peter Sellers were alive, he could play all three parts. This movie could easily top "Dr. Strangelove:" Can you imagine a final scene with these three cowboys saddled on bombs?

Who needs stinking diplomatic negotiations?

# posted by

Shag from Brookline : 6:55 AM

Arne:
I agree with your comment, too. But I think it underscores my point: there is a segment of the US, from Halliburton to Bart, that thinks this is all well and good, and that there is no reason to stop the path of fear, hate, blood and empire, at least as long as the rewards to the rentier class are as high as they have been. No amount of twiddling with rules will fix this; it requires seizing the levers from the oligarchy. So far I don't see much evidence that the bulk of Americans are interested in doing that.

# posted by

sparky : 8:58 AM

Brett said...

As for the rest of it, Bart is clearly wrong. There's scarcely any point in giving Congress, and only Congress, the power to declare war, if the President is empowered to wage war without declaration, and not wage it in the face of a declaration. That's the sort of sophistry that has rendered the Constitution a virtual dead letter.

Where did I post any of that?

Once again, my argument is that the President does not have the power to start a war with another country until Congress enacts a declaration of war or its AUMF equivalent.

However, if the enemy has already started a war against the US and we are in a de facto war, the President does not have to wait for Congress to act to wage war in return. The power to start a war has been rendered moot by the fact that the enemy has already begun the war. Where the enemy is already attacking us, it is madness to expect the President to decline to carry out his duties to defend the nation until Congress acts.

Finally, the power to declare war is only the power to start a war. Article I nowhere grants Congress the power to stop or otherwise direct a war apart from defunding it.

My proposition does not render the Constitution a dead letter. Rather, it is far more faithful to the Constitution that the Clinton Administration's argument that the President could start wars with Serbia and Haiti without congressional authorization.

# posted by

Bart DePalma : 10:00 AM

Bart: "foreign policy . . . . [is a] plenary power[] of the President".

Huh? The President's only explicitly granted power over foreign policy that he can exercise without the consent of at least on branch of Congress is the ability to receive ambassadors. All other powers are granted exclusively to Congress or held only subject to Congressional regulation of various kinds. See Art I, Sec. 8; Art II, Sec. 2.

# posted by

Unknown : 10:19 AM

Imagine that the President threatens to unconstitutionally sign an executive order allocating funding for the Iraq War.

Iran-Contra, anyone? Of course, that was done secretly, under executive privelege, so we shouldn't have known about it, for our own best interests.

# posted by

Fraud Guy : 10:28 AM

"Where the enemy is already attacking us"

Bart's right. This is the well-known Gulf of Tonkin doctrine.

Hail Caesar.

# posted by

Unknown : 11:46 AM

I want to point to an irony in the ever-present debate between Mr. DePalma and his critics: It is Mr. DePalma (and John Yoo, with impeccable academic credentials and a tenured position at Mr. Langsemo's alma mater) who seemingly agree that the Constitution, correctly interpreted, does indeed establish, at least in some significant respects, a "constitutional dictatorship." It is "constitutional" not only because it derives from a possible reading of the Constitution (i.e., Article II and its omission of the "herein granted" found in Article I), but also because it is a "limited dictatorship," most obviously by duration. As I have written before, for all of my loathing of Bush and Cheney, I do not doubt for a moment that they will leave the White House (and wherever Cheney is ensconced) on Jan. 20, 2009 and acquiesce in the takeover of government by President Clinton, Obama, or whoever it happens to be. That is no small point. BUT "dictatorship" it remains with regard to the Administration's views of its functionally unlimited powers of peace and war.

Mr. DePalma's critics, of course, offer a different reading of the Constitution, one with which I am much more in sympathy. They presumably agree with the use of the epithet of "dictatorship," but use that term as synonymous with "illegitimacy," which is not the case with those who defend the claims of the Administration. After all, there have been "constitutional dictatorships" in the past, the most notable in the Roman Republic. And, of course, I continue to believe that Clinton Rossiter's Constitutional Dictatorship is essential reading.

And, in response to Brett, I will indeed return to my other blog to see if there have been additional comments.

# posted by

Sandy Levinson : 11:54 AM

Professor Levinson:

I am curious. What is your definition of a "dictatorship" for the purposes of these ongoing debates?

Obviously, you are not arguing that the President is a "dictator" because he is unelected, which is a necessary element of the common meaning of that term. The President has the same electoral and thus democratic credentials as the Congress.

I assume that your definition of a "dictatorship" is much looser and is really a complaint that Article II grants the President plenary powers unshared by the other branches.

If this assumption is correct, I do not see why you do not also apply that same appellation to Congress given that Article I grants it even more plenary powers than the President.

BTW, I do not mind the comparison to Professor Yoo because I do not view him as some sort of boogeyman. However, I would observe that I have several disagreements with his opinions as to the scope of Article II.

Unlike Yoo, I do believe that Article I's enumerated powers in the area of foreign and military grant Congress plenary authority in those particular areas. While the President may be considered the "sole organ of foreign policy,"that does not mean he has a monopoly of powers in this area. Moreover, the President's powers to not wax during war and wane during peace. They are what they are.

Where I disagree with most who post here is that I do not assume that Congress has any powers beyond those enumerated in Article I. Rather, all foreign and military policy powers not expressly granted to Congress by Article I are granted solely to the President by Article II's broad provisions.

Consequently, although I dislike this term because it generally refers to those who cannot make a principled decision, I would suggest that I am a "moderate" in these ongoing separation of powers wars.

# posted by

Bart DePalma : 1:45 PM

Prof. Levinson:

I want to point to an irony in the ever-present debate between Mr. DePalma and his critics: It is Mr. DePalma (and John Yoo, with impeccable academic credentials and a tenured position at Mr. Langsemo's alma mater) who seemingly agree that the Constitution, correctly interpreted, does indeed establish, at least in some significant respects, a "constitutional dictatorship." It is "constitutional" not only because it derives from a possible reading of the Constitution (i.e., Article II and its omission of the "herein granted" found in Article I), but also because it is a "limited dictatorship," most obviously by duration.

It is an "possible reading" (in a 'lawyerly' -- a/k/a adversarial -- sort of fashion), but a fundamentally disingenuous one.

The Constitution was written for educated and reasonable people, nad it was expected that such would carry it out (and bring it back when others attempted to subvert it).

Even such as the Great Nino find overarching precepts that just ain't in the plain language (such as the notion that the Eleventh Amendment forbids suits against states by their own citizens).

You need to read the Constitution as an organic whole (and with some heed to the words of the folks that wrote it). In the famous words of one person, "the Constitution is not a suicide pact" ... and that goes for interpretations that gut the Constitution of its own instigations, rationales and precepts.

The notion that Congress can start a war but not stop it is such an absurd notion. The putting of the plenary power to start wars in the hands of Congress was expressly done to prevent wars from getting too frequent or mundane; the fears of the Founders as to the tendencies of an executive to wage war were quite clear. Why anyone would insist that the Constitution prohibits Congress from ending a war gone (or done) wrong is beyond me. Why anyone would insist on making the job of stopping war far harder than starting one, and put as few tools in the hands of Congress to do so as possible, is also a mystery. Despite the fact that there is no mention of this obviously necessary power (unless one thinks that wars, once begun, must persist for aeternity), it has to be considered a complementary and necessary power to that of starting wars (just as is the power to not tax is a necessary complement to the power to tax) for the power to be meaningful within any common sense understanding of the Constitution; to argue otherwise is to argue for an end that was obviously not intended nor condoned by the founders.

On another note, I would once again raise the objection that Bart's "broad provisions" of Article II are no such thing. I think that "vague" (or in the case of some "powers" Bart alleges, "nonexistent [at least in the text]") would better sum it up. While Bart runs the misdirection of referring to "foreign and military policy powers", the language for the "broad provisions" 'argument' refers to the "executive power" as a whole. If this is to encompass (under Bart's rationale) everything that Congress is not expressly given, that hardly leaves any room for the Tenth Amendment, does it? No, any claim as to plenary powers WRT the military must arise only from the "CinC' provision (and that constrained even then by "called into the actual service") and be subject to the contrary provisions of Article I. And there is no grant of plenary power over "foreign" affairs to be seen in Article II, period; that word doesn't occur even once.

Bart's argument is not one from Constitutional fealty and adherence, but rather in opposition to such, both in name and in spirit.

Cheers,

# posted by

Arne Langsetmo : 6:24 PM

The notion that Congress can start a war but not stop it is such an absurd notion.

There's nothing absurd about it at all, except that you don't like our current president. Once a war has begun, one is fighting an enemy country. Enemy soldiers are shooting at your soldiers. This is outside the province of a legislature.

The putting of the plenary power to start wars in the hands of Congress was expressly done to prevent wars from getting too frequent or mundane; the fears of the Founders as to the tendencies of an executive to wage war were quite clear. Why anyone would insist that the Constitution prohibits Congress from ending a war gone (or done) wrong is beyond me.

Because wars are fought on the battlefield; they end either when one side defeats the other or when the two sides agree to stop. It makes sense in neither case for Congress to be involved. One is military, and the other is diplomatic, and both are in the hands of the executive.

Why anyone would insist on making the job of stopping war far harder than starting one, and put as few tools in the hands of Congress to do so as possible, is also a mystery. Despite the fact that there is no mention of this obviously necessary power (unless one thinks that wars, once begun, must persist for aeternity), it has to be considered a complementary and necessary power to that of starting wars

Ah, but there is a mention of the power. It's in Article II, Section 2. It's the power to make treaties.

(just as is the power to not tax is a necessary complement to the power to tax)

That parallel is flawed. That would be equivalent to saying that Congress has the power not to declare war as a complement to the power to declare war. The power to end war is an entirely different concept.

for the power to be meaningful within any common sense understanding of the Constitution; to argue otherwise is to argue for an end that was obviously not intended nor condoned by the founders.

The founders did not want the president to be able to take us to war on his own say so. They also did not want the course of a war micromanaged after it was begun; it requires a "single hand." Federalist 74.

# posted by

David Nieporent : 4:43 AM

David Nieporent:

[Arne]: The notion that Congress can start a war but not stop it is such an absurd notion.

There's nothing absurd about it at all, except that you don't like our current president....

Nope. It's absurd no matter who is preznit. A "one-way door" that leads only to war is perhaps the stoopidest (and most inhumane) idea anyone can come up with. The founders looked askance at war, and would hardly favour making it more likely and more costly than absolutely necessary. If anyone needs a graphic illustration of the wisdom of the founders here, they need only look at the present situation.

... Once a war has begun, one is fighting an enemy country. Enemy soldiers are shooting at your soldiers. This is outside the province of a legislature.

Why? Is it also "outside the province of the Deciderator-In-Chief"?

[Arne]: The putting of the plenary power to start wars in the hands of Congress was expressly done to prevent wars from getting too frequent or mundane; the fears of the Founders as to the tendencies of an executive to wage war were quite clear. Why anyone would insist that the Constitution prohibits Congress from ending a war gone (or done) wrong is beyond me.

Because wars are fought on the battlefield; they end either when one side defeats the other or when the two sides agree to stop. It makes sense in neither case for Congress to be involved....

Why?

... One is military, and the other is diplomatic, and both are in the hands of the executive.

Nonsense. But I'd note that my objection above was as to the overall difficulty in stopping a war. Note that the Constitution doesn't empower the preznit to stop one. My contention is that there is an implicit power to cease hostilities, just as important as the power to initiate them.

[Arne]: Why anyone would insist on making the job of stopping war far harder than starting one, and put as few tools in the hands of Congress to do so as possible, is also a mystery. Despite the fact that there is no mention of this obviously necessary power (unless one thinks that wars, once begun, must persist for aeternity), it has to be considered a complementary and necessary power to that of starting wars...

Ah, but there is a mention of the power. It's in Article II, Section 2. It's the power to make treaties.

"[B]y and with the advice and consent of the Senate...." But does he have the power to surrender?

[Arne]: ... (just as is the power to not tax is a necessary complement to the power to tax)

That parallel is flawed. That would be equivalent to saying that Congress has the power not to declare war as a complement to the power to declare war. The power to end war is an entirely different concept.

No. Congress has the power to tax, the power not to tax, and the power to repeal a tax.

[Arne]: for the power to be meaningful within any common sense understanding of the Constitution; to argue otherwise is to argue for an end that was obviously not intended nor condoned by the founders.

The founders did not want the president to be able to take us to war on his own say so. They also did not want the course of a war micromanaged after it was begun; it requires a "single hand." Federalist 74.

That's the power of a "Commander-In-Chief". That is apart from the ability to declare war (or not). Once Congress has decided to declare war, the execution of the war (and the role of command and subordination) belongs to the president. It's like a CEO. He's tasked with a job, and he gets paid for it. But the owners (through their board) get the final say.

If you feel so strongly that the Founders were sufficiently enthralled with the idea of carrying out wars to whatever conclusion, sorry or not, once initiated, feel free to trot out any evidence supporting your proposition. If this is what they thought, should be no problem. On the contrary, their views on war were quite clear, and they weren't keen on the idea of some doofus like Dubya running us down the sh*tter. Even the primogenitor of our military, George Washington, was noticeably cool on that idea.

Cheers,

# posted by

Arne Langsetmo : 1:55 PM