A VIEW OF OUR CONSTITUTION FROM OVERSEAS
A European member of one of the Listservs I subscribe to posted the following comment the other day:
“Unfortunately, I am not quite familiar with the American system,
so I do not know the exact terms, but I would say that the authorization
act by Congress to the President to do whatever he seems appropriate as a
response to 9-11 is a clear violation of separation of powers, as well as
the President’s excessive use of “Presidential Orders”. One could argue
that a state of emergency justifies that, but still a state of emergency
in a democracy has to fulfill some liberal standards”
There’s a lot of confusion regarding Force Authorization Resolutions. And there should be because that’s the intent of their sponsors, to muddy the legal waters on matters of war and peace. I posted the following response:
“…[the poster] has an excellent grasp of the spirit of the American Constitutional system. Her only error, in my view, arises from the fact that the current preference of the Legislative branch for an Authorization to Use Force Resolution creates an appearance that is counterintuitive to the legal reality.
The United States Constitution divides the war powers between the Legislative and Executive branches, investing the decision to go to war rest with the former and giving power over the conduct of the war to the latter. The Legislative branch also has a check after the fact in that the war must be paid for out of new appropriations. The Congress exercised this power of the purse during Vietnam to curb the actions of the Nixon administration in Southeast Asia.
As a practical matter, having consented to a declaration of war, the Congress writes an almost blank check to the President, so strong are the traditional conceptions of the scope of the President’s powers as Commander-in-Chief during wartime. The Congress really only can muster the will to quibble at the margins so they are loathe to formally invoke the phrase ” declare war ” if it can possibly be avoided. A joint resolution to use force, however broadly worded ( and the 9/11 resolution is fantastically broad) is actually an attempt by the Congress to set ” less than war ” parameters on the President’s use of his military powers. Ditto for the Constitutionally-suspect War Powers Act.
Personally, I am extremely dubious that such a semantic distinction would pass muster with the Supreme Court of the United States, given the factual circumstances of the 9/11 attack and the invasion of Iraq. The Constitution gives the Congress the power to declare war in Article I. but leaves the procedure and wording up to the Congress, unlike,for example, with cases of treason where the Framers took care to remove any flexibility whatsoever. My hypothesis is that the High Court would regard the 9/11 and Iraq Force Resolutions as acts of war in a way they might not for a Force Resolution authorizing a limited peacekeeping engagement in Bosnia.
As for the president’s ” excessive ” use of executive orders, President Bush has actually has been more circumspect than many of his wartime predecessors including Truman, FDR, Wilson and Lincoln. What FDR did in terms of internment of Japanese-American *civilians*, a reprehensible act of poor judgement but one that was nevertheless upheld by the Supreme Court in Korematsu v. United States, demonstrated how far the legal authority of the president in war time can be stretched. Mr. Bush, by contrast has not even sent al Qaida *combatants* before court-martials for war crimes which could easily result in death sentences for fighting out of uniform or targeting civilians, something well within normal military justice procedures.
The objections to Mr. Bush’s actions in this regard tend, I have observed, to come most heatedly from those who also happen to argue that the United States is not actually at war.”
