Tag Archives: Congress

War and the Separation of Powers, by Andrew P. Napolitano

Congress has unconstitutionally abdicated its power to declare war. From Andrew P. Napolitano at lewrockwell.com:

A popular way to begin the first day of class in constitutional law in many American law schools is to ask the students what sets the U.S. Constitution apart from all others. Usually, they answer that it’s the clauses that guarantee the freedom of speech, privacy and due process.

Yes, each of those guarantees — if upheld — is vital to restraining government, but the overarching and most important unique aspect of the Constitution is the separation of powers. The constitutions of many totalitarian countries pay lip service to free speech, privacy and due process, but none has the strict separation of powers that the U.S. does.

Under our Constitution, the Congress writes the laws, the president enforces them and the courts interpret them; and those powers and functions may not constitutionally be mixed or exchanged. The Congress also declares war. The president also wages war. The courts also invalidate the acts of the other two branches when they exceed their constitutional powers.

The Supreme Court has ruled that the separation of powers is integral to the Constitution not to preserve the prerogatives of each branch of government but to divide governmental powers among the branches so as to keep power diffused — and thereby limited and protective of personal freedom.

James Madison, who wrote the Constitution, wanted not only this diffusion by separation but also tension — even jealousy — among the branches so as to keep each in check.

Thus, even if one branch of government consented to ceding an essential power to another branch, such a giveaway would be unconstitutional, the Supreme Court has ruled, because the core functions of each branch of the federal government may not be delegated away to either of the other two without violating the separation of powers.

I am writing about this not as a history or constitutional law mini-lesson but rather because it’s necessary background information to address a real and contemporary problem. Two weeks ago, on the basis of evidence so flimsy that his own secretary of defense rejected it — and without any legal or constitutional authority — President Donald Trump dispatched 110 missiles to bomb certain military and civilian targets in Syria, where the president argued the Syrian government manufactured, stored or used chemical weapons.

To continue reading: War and the Separation of Powers

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Mr. Pissed Goes to Washington, by xrugger

This is a great demonstration of the art form known as the rant. From xrugger at theburningplatform.com:

I’ve been thinking a great deal lately, about what I might say if I were given the opportunity to give the State of the Union address, not as President, but just as a citizen. Let’s give it a go.

My fellow Americans, as I look around this chamber, I see a few people that a thinking person might consider worthy of a modicum of respect and possibly even a few with some degree of integrity and honor remaining despite their years of service to this government. I say “to this government” deliberately and with the distinct intention to offend because I believe that this chamber, with very few exceptions, is indeed in service to this government, not in service to this nation. Essentially, what I’m saying is you are all douchebags to one degree or another.

I see in the front row, the currently serving members of the Supreme Court…somebody wake Ginsburg up, she needs to hear this. Thanks Clarence. Now, where was I…oh yeah…I wanted to say a few words about the judicial form of douchebaggery.

You sit here now only because in the early days of the Republic, the travesty of Marbury vs. Madison bestowed upon your predecessors unwarranted power and prerogatives initially dangerous and ultimately destructive to liberty. The history of the Court is a litany of encroachment, overreach, and judicial hubris. You have arrogated to yourselves the supposed ultimate authority to dictate to a free people what their founding documents really meant rather than what they really said. In your arrogance, you assume that the citizenry will always submissively accept whatever legal abominations are unleashed upon them by nine black-robed busybodies. I warn you that such a state of affairs cannot last forever. You are not the final arbiters of the nation’s fate.

I see also in attendance, many high-ranking members of the military services and law enforcement. Be assured there will be no slavish adulation directed your way during these comments. As an ex-military man myself, I understand the usually honorable tendency of the people to hold the military and police in high regard. However, let us not forget that the very idea of a standing army was anathema to the Founders as was the concept of a pervasive, over-armed, and aggressive police authority.

To continue reading: Mr. Pissed Goes to Washington

A Conspiracy of Silence Assaults Privacy, by Andrew P. Napolitano

Congress and President Trump are making the Fourth Amendment a dead letter, which means that privacy will soon be but a memory. From Andrew P. Napolitano at lewrockwell.com:

During the past three weeks, Congress passed and President Donald Trump signed into law vast new powers for the NSA and the FBI to spy on innocent Americans and selectively to pass on to law enforcement the fruits of that spying.

Those fruits can now lawfully include all fiber-optic data transmitted to or in the United States, such as digital recordings of all landline and mobile telephone calls and copies in real time of all text messages and emails and banking, medical and legal records electronically stored or transmitted.

All this bulk surveillance had come about because the National Security Agency convinced federal judges meeting in secret that they should authorize it. Now Congress and the president have made it the law of the land.

This enactment came about notwithstanding the guarantee of the right to privacy — the right to be left alone — articulated in the Fourth Amendment to the Constitution and elsewhere. Though the surveillance expansion passed the Senate by just one vote, it apparently marks a public policy determination that the Constitution can be ignored or evaded by majority consent whenever it poses an obstacle to the government’s purposes.

The language of the Fourth Amendment is an intentional obstacle to the government in deference to human dignity and personal liberty. It reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This specific language was expressly written to prevent the bulk suspicionless surveillance that the British government had used against the colonists. British courts in London issued general warrants to British soldiers in America, authorizing them to search wherever they wished and seize whatever they found. These warrants were not based on probable cause, and they did not describe the place to be searched or the people or things to be seized.

To continue reading: A Conspiracy of Silence Assaults Privacy

Congress Plotting to Cut a Hole in the 4th Amendment, Again, by Andrew P. Napolitano

You’ve got to wonder if there will be a Bill of Rights left by the end of Trump’s time in office. From Andrew P. Napolitano at lewrockwell.com:

Hidden beneath the controversy stirred up last week by the publication of a book called “Fire and Fury,” a highly critical insider’s view of the Trump White House that the president has not only denounced on national television but also tried to prevent from being published and distributed, are the efforts of the Trump administration and congressional leadership to bypass the Fourth Amendment to the Constitution.

Here is the back story.

After the excesses of the Watergate era, during which the Nixon administration used the FBI and the CIA unlawfully to spy without warrants on the president’s real and imagined domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act. FISA prohibited all domestic surveillance except that which is pursuant to warrants signed by federal judges.

The Fourth Amendment — which guarantees privacy in our persons, houses, papers and effects — permits the government to invade that privacy only when a judge has signed a warrant that authorizes surveillance, a search or a seizure. And judges may only issue warrants when they have found probable cause to believe that the government surveillance or invasion of the target’s privacy will produce evidence of criminal behavior. The Fourth Amendment further requires that the judicial warrant describe specifically the place to be searched or the person or thing to be seized.

All these requirements are in the amendment so as to prevent any court from issuing general warrants. Before the Constitution, general warrants were issued by British courts that met in secret in London. They were not issued based on probable cause of crime but issued based on the government’s wish to invade the privacy of all Americans living in the Colonies to find the more rebellious among them. This was the king and Parliament’s version of protecting national security.

General warrants did not describe the place to be searched or the person or thing to be seized. They authorized the bearer — usually a British soldier physically located in the Colonies — to search where he wished and seize whatever he found.

 

To continue reading: Congress Plotting to Cut a Hole in the 4th Amendment, Again

Yemen Proves US Needs to Get a Handle on War-Making Powers, by Jason Ditz

There was no authorization whatsoever for the US’s current misguided war effort in Yemen. From Jason Ditz at antiwar.com:

With the Yemen War fast approaching its third anniversary, Afghanistan well into its 17th year, Iraq and Syria seemingly permanent US wars, and escalations ongoing across Africa, the US has seemingly more wars than ever going on. President Trump has been giving the military increasing autonomy in those wars, and the feeling of loss of control is palpable.

It’s been years since Congress has willingly asserted its authority on war-making in any serious way, and the president too is now delegating much to the generals. The American public’s ability to give meaningful input on America’s wars is far more limited.

Recent polls suggest that’s a position the American voters aren’t necessarily all that comfortable with. A November poll from J. Wallin Opinion Research showed the vast majority of Americans, over 70%, want Congress to impose at least some specific limits on overseas conflicts and exercise more direct oversight. It also showed a majority favor withdrawing US forces from the Yemen War.

While there are no shortage of reasons for America’s war-weariness to be skyrocketing, the Yemen War seems to be the tipping point for a number of reasons. The Yemen War was never debated even a little within the US, and is rapidly settling into one of the worst humanitarian crises in a generation.

The Yemen War cut aid off almost entirely to 15 million in the country’s north, led to what has been called the single worst cholera outbreak in human history, with over a million patients, and has been killing civilians by the thousands both in US-facilitated airstrikes and through mass starvation and lack of medicine.

The American public never signed up for doing that to Yemen, nor indeed did Congress. There is no legal pretext of an authorization for the use of military force in Yemen, even with the vague interpretations of the 2001 AUMF that have been used as a pretext for every other war.

To continue reading: Yemen Proves US Needs to Get a Handle on War-Making Powers

Congress’s Romance with Cowardice War Without War Powers (the Not-So-New American Way), by Danny Sjursen

Congress abdicated it’s constitutionally mandated war powers long ago. This is a history of congressional cowardice. From Danny Sjursen at tomdispatch.com:

On September 1, 1970, soon after President Nixon expanded the Vietnam War by invading neighboring Cambodia, Democratic Senator George McGovern, a decorated World War II veteran and future presidential candidate, took to the floor of the Senate and said,

“Every Senator [here] is partly responsible for sending 50,000 young Americans to an early grave… This chamber reeks of blood… It does not take any courage at all for a congressman or a senator or a president to wrap himself in the flag and say we are staying in Vietnam, because it is not our blood that is being shed.”

More than six years had passed since Congress all but rubber-stampedPresident Lyndon Johnson’s notoriously vague Tonkin Gulf Resolution, which provided what little legal framework there was for U.S. military escalation in Vietnam.  Doubts remained as to the veracity of the supposed North Vietnamese naval attacks on U.S. ships in the Tonkin Gulf that had officially triggered the resolution, or whether the Navy even had cause to venture so close to a sovereign nation’s coastline.  No matter. Congress gave the president what he wanted: essentially a blank check to bomb, batter, and occupy South Vietnam.  From there it was but a few short steps to nine more years of war, illegal secret bombings of Laos and Cambodia, ground invasions of both those countries, and eventually 58,000 American and upwards of three million Vietnamese deaths.

Leaving aside the rest of this country’s sad chapter in Indochina, let’s just focus for a moment on the role of Congress in that era’s war making.  In retrospect, Vietnam emerges as just one more chapter in 70 years of ineptitude and apathy on the part of the Senate and House of Representatives when it comes to their constitutionally granted war powers.  Time and again in those years, the legislative branch shirked its historic — and legal — responsibility under the Constitution to declare (or refuse to declare) war.

And yet, never in those seven decades has the duty of Congress to assert itself in matters of war and peace been quite so vital as it is today, with American troops engaged — and still dying, even if now in small numbers — in one undeclared war after another in Afghanistan, Iraq, Syria, Somalia, Yemen, and now Niger… and who even knows where else. 

To continue reading: Congress’s Romance with Cowardice War Without War Powers (the Not-So-New American Way)

US Administration Defends Its Right to Start Wars on a Whim, by Andrei Akulov

Forget that separation of powers of stuff that if you’re old enough, you may have learned in an American Government class somewhere. If the president wants to make war, he just makes war. From Andrei Akulov at strategic-culture.org:

US Administration Defends Its Right to Start Wars on a Whim

The US Constitution says that only Congress can declare war for an extended time but there is a workaround. Congress approved the 2001 Authorization for Use of Military Force (AUMF), giving the president the authority to track down and destroy al-Qaeda and the Taliban. The resolution stipulates that “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” The resolution’s 2002 version gave President Bush the authority to invade Iraq. Only 25 percent of the current members of Congress in the House and Senate were present when the current AUMFs were passed.

Sen. Chris Murphy, D-Conn., and several other Democrats are asking whether a new law authorizing the use of military force should be written. They are planning to introduce legislation that would prohibit Trump from starting a pre-emptive war against North Korea, absent an imminent threat or without express authorization from Congress. They call for one without a sunset date, saying that Congress needs to have a voice.

The deadly incident in Niger last month ignited a push among many members of Congress to update the legal parameters for combat operations overseas. The revelation that the US is at war in Niger, without Congress even knowing, was startling. This is the perfect illustration of the US’s permanent war posture around the world, where battles are waged with little or no public scrutiny and no congressional authorization. All previous attempts to ditch the old authorization and force Congress to craft a new one have failed. For years now, Congress has abdicated its responsibility to debate and vote on US wars.

This time lawmakers mentioned the possibility of using military force in crises involving North Korea, Iran and Venezuela, as well as the ongoing efforts against multiple militant groups that did not exist at the time the AUMF came into force. The AUMF authorized military actions only against al Qaeda, the Taliban and other perpetrators of the Sept. 11 terrorist attacks.

To continue reading: US Administration Defends Its Right to Start Wars on a Whim