Congress, the Constitution and War: The Limits on Presidential Power
By ADAM COHEN Published: January 29, 2007
President Bush doesn’t seem to care that Congress wants a bigger role in guiding the Iraq war. Talking about his plan to send in 20,000 additional troops, he said on “60 Minutes” that he knows Congress can vote against it, “but I’ve made my decision and we’re going forward.”
It is hardly the first time this president has insisted that he is “the decider,” or even the first time he’s used the Constitution to justify it, as Vice President Dick Cheney did when he told Fox News: “The Constitution is very clear that the president is, in fact, under Article 2, the commander in chief.”
But Mr. Cheney told only half the story. Congress has war powers, too, and with 70 percent of Americans now opposed to President Bush’s handling of the war, according to an ABC News/Washington Post poll, it is becoming more assertive about them. Congress is poised to pass a resolution denouncing the troop increase. Down the line, Congress may well consider mandatory caps on the number of troops in Iraq, or setting a date for withdrawal.
If it does, we may be headed toward a constitutional clash, with the administration trying to read powers into the Constitution — as it has with its “enemy combatant” doctrine and presidential “signing statements” — that the Founders did not put there. The Constitution’s drafters were intent on balancing power so no one branch could drift toward despotism. The system of checks and balances that runs through the document divides the war power between the president and Congress.
The Constitution’s provision that the president is the commander in chief clearly puts him at the top of the military chain of command. Congress would be overstepping if, for example, it passed a law requiring generals in the field to report directly to the speaker of the House.
But the Constitution also gives Congress an array of war powers, including the power to “declare war,” “raise and support armies” and “make rules concerning captures on land and water.” By “declare war,” the Constitution’s framers did not mean merely firing off a starting gun. In the 18th century, war declarations were often limited in scope — European powers might fight a naval battle in the Americas, for example, but not battle on their own continent. In giving Congress the power to declare war, the Constitution gives it authority to make decisions about a war’s scope and duration.
The Founders, including James Madison, who is often called “the father of the Constitution,” fully expected Congress to use these powers to rein in the commander in chief. “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it,” Madison cautioned. “It has accordingly with studied care, vested the question of war in the Legislature.”
In the early days of the republic, the Supreme Court made clear that Congress could limit the president’s war powers — notably in the Flying Fish case. In 1799, during the “Quasi War,” the undeclared sea war between the United States and France, Congress authorized President John Adams to clamp down on trade between the two nations by stopping ships headed to French ports. But Adams went further, ordering commanders to stop ships that were sailing to or from a French port.
When the Flying Fish was seized while sailing from a French port — something Congress had not authorized — the ship’s owner sued. The Supreme Court decided in his favor, ruling that the president had no right to issue the order he did. John Marshall, the nation’s greatest chief justice, declared that even in a time of hostilities, a president’s decision to act militarily beyond what Congress had authorized was “unlawful.”
The court has repeatedly reinforced this principle. In 1952, in the steel seizure case, it ruled that President Harry Truman could not seize steel mills to avert a strike — even though steel was needed for the Korean War — because Congress had set out a different way of handling the labor unrest. More recently, in Hamdan v. Rumsfeld, it held that President Bush must follow Congressional guidelines when he sets up military tribunals for detainees.
Past Congresses have enacted just the sort of restrictions the Bush administration is trying to foreclose today. During the Vietnam War, the Foreign Assistance Act of 1974 capped the number of American military personnel in South Vietnam at 4,000 within six months. The Lebanon Emergency Assistance Act of 1983 required the president to get Congress’s approval for any substantial increase in the number or role of armed forces in Lebanon.
There is little question that Congress could use its power of the purse to end a war. But cutting off financing is a drastic step, and one that members of Congress are understandably reluctant to take, because it can look like a refusal to support the troops. The Constitution’s text, Supreme Court cases and history show, however, that Congress can instead pass laws that set the terms of military engagement. Whether it would be wise for Congress to adopt such limits is debatable; whether it has the authority to do so should not be.
The Bush administration insists that if Congress tries to manage the Iraq war, it will leave the commander in chief with too little authority. But the greater danger is the one Madison recognized at the nation’s founding — that all the power will be left with the person “most interested in war, and most prone to it.”
Wouldn't you like to know where Dick Cheney puts his money? Then you'd know whether his "deficits don't matter" claim is just baloney or not.
Well, as it turns out, Kiplinger Magazine ran an article [F6 note -- at http://articles.moneycentral.msn.com/Investing/Extra/CheneysBettingonBadNews.aspx ] based on Cheney's financial disclosure statement and, sure enough, found out that the VP is lying to the American people for the umpteenth time. Deficits do matter and Cheney has invested his money accordingly.
The article is called "Cheneys betting on bad news?" and provides an account of where Cheney has socked away more than $25 million. While the figures may be estimates, the investments are not. According to Tom Blackburn of the Palm Beach Post, Cheney has invested heavily in "a fund that specializes in short-term municipal bonds, a tax-exempt money market fund and an inflation protected securities fund. The first two hold up if interest rates rise with inflation. The third is protected against inflation."
Cheney has dumped another (estimated) $10 to $25 million in a European bond fund which tells us that he is counting on a steadily weakening dollar. So, while working class Americans are loosing ground to inflation and rising energy costs, Darth Cheney will be enhancing his wealth in "Old Europe". As Blackburn sagely notes, "Not all bad news' is bad for everybody."
This should put to rest once and for all the foolish notion that the "Bush Economic Plan" is anything more than a scam aimed at looting the public till. The whole deal is intended to shift the nation's wealth from one class to another. It's also clear that Bush-Cheney couldn't have carried this off without the tacit approval of the thieves at the Federal Reserve who engineered the low-interest rate boondoggle to put the American people to sleep while they picked their pockets.
Reasonable people can dispute that Bush is "intentionally" skewering the dollar with his lavish tax cuts, but how does that explain Cheney's portfolio?
It doesn't. And, one thing we can say with metaphysical certainty is that the miserly Cheney would never plunk his money into an investment that wasn't a sure thing. If Cheney is counting on the dollar tanking and interest rates going up, then, by Gawd, that's what'll happen.
The Bush-Cheney team has racked up another $3 trillion in debt in just 6 years. The US national debt now stands at $8.4 trillion dollars while the trade deficit has ballooned to $800 billion, nearly 7% of GDP.
This is lunacy. No country, however powerful, can maintain these staggering numbers. The country is in hock up to its neck and has to borrow $2.5 billion per day just to stay above water. Presently, the Fed is expanding the money supply and buying back its own treasuries to hide the hemorrhaging from the public. Its utter madness.
Last month the trade deficit climbed to $70 billion. More importantly, foreign central banks only purchased a meager $47 billion in treasuries to shore up our ravenous appetite for cheap junk from China.
Do the math! They're not investing in America anymore. They are decreasing their stockpiles of dollars. We're sinking fast and Cheney and his pals are manning the lifeboats while the public is diverted with gay marriage amendments and "American Celebrity".
The American manufacturing sector has been hollowed out by cutthroat corporations who've abandoned their country to make a fast-buck in China or Mexico. The $3 trillion housing (equity) bubble is quickly losing air while the anemic dollar continues to sag. All the signs indicate that the economy is slowing at the same time that energy prices continue to rise.
This is the onset of stagflation; the dreaded combo of a slowing economy and inflation.
Did Americans really think they'd be spared the same type of economic colonization that has been applied throughout the developing world under the rubric of "neoliberalism"?
Well, think again. The American economy is barrel-rolling towards earth and there are only enough parachutes for Cheney and the gang.
The country has lost 3 million jobs from outsourcing since Bush took office; more than 200,000 of those are the high-paying, high-tech jobs that are the life's-blood of every economy.
Consider this from the Council on Foreign Relations (CFR) June edition of Foreign Affairs, the Bible of globalists and plutocrats:
"Between 2000 and 2003 alone, foreign firms built 60,000 manufacturing plants in China. European chemical companies, Japanese carmakers, and US industrial conglomerates are all building factories in China to supply export markets around the world. Similarly, banks, insurance companies, professional-service firms, and IT companies are building R&D and service centers in India to support employees, customers, and production worldwide." ("The Globally integrated Enterprise" Samuel Palmisano, Foreign Affairs page 130 [F6 note -- at http://www.foreignaffairs.org/20060501faessay85310/samuel-j-palmisano/the-globally-integrated-enterp... ])
"60,000 manufacturing plants" in 3 years?!?
"Banks, insurance companies, professional-service firms, and IT companies"?
No job is safe. American elites and corporate tycoons are loading the boats and heading for foreign shores. The only thing they're leaving behind is the insurmountable debt that will be shackled to our children into perpetuity and the carefully arranged levers of a modern police-surveillance state.
Welcome to Bush's 21st Century gulag; third world luxury in a Guantanamo-type setting.
Take another look at Cheney's investment strategy; it tells the whole ugly story. Interest rates are going up, the middle class is going down, and the poor dollar is headed for the dumpster. The country is not simply teetering on the brink of financial collapse; it is being thrust headfirst by the blackguards in office and their satrapies at Federal Reserve.
Mike Whitney lives in Washington state. He can be reached at: fergiewhitney@msn.com
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