Posts Tagged ‘U.S. Constitution’
Unbeknownst to many people, Barack Obama’s ascendency to the presidency has, despite his 2008 campaign promises, done almost nothing to reverse one of the most heinous policies of the Bush-Cheney era: the practice of indefinitely detaining people whom the US state deems “enemy combatants”, or terrorism suspects. Without charges and without recourse to a judge. The mere charge of being a terror suspect can still lead to uncontrollable, unaccountable detention by the American government; this is viewed by both Bush-Cheney and Obama as an inherent, presidential prerogative. No one who is not out of his right mind would not view this as in straightforward contradiction to the rule of law.
But President Obama’s record has just gotten even worse. After months of threatening to veto a bill put forward by the partly Republican-controlled Congress allowing the U.S. military to indefinitely detain anyone, including American citizens, anywhere in the world, including in the U.S., without charges, he has now said that he will sign it into law.
Thereby Obama, the 2008 darling of liberals and progressives, has become the president who has made extrajudicial indefinite detention at the charge of being an “enemy combatant” official law and policy, rather than an exception. Obama is even worse than Bush-Cheney! This should be clear to anyone who is still an Obama fanboy.
When in the 1950s, the McCarthy era, Congress presented Harry Truman with a similar bill allowing the indefinite detention of Communists and other ‘subversive elements’ without charges, Truman vetoed it. But Obama is not such a person. The right not to be detained forever by the state without a fair trial is a fundamental human right, part of the Western juridical tradition, that has just been violated possibly forever by this president.
This becoming law will also mean two things. First, that the U.S. military can now be involved in domestic policing activities (!). Second, that the battleground of the so-called ‘War on Terror’ has now been extended to American soil too. Can you believe that?
At this point, I would officially hope that Obama gets defeated at the polls next year. If Ron Paul’s ideas on economic policy weren’t so nutty, I would support him – a Republican - if he was the nominee.
In one of the least surprising developments imaginable, President Obama – after spending months threatening to veto the Levin/McCain detention bill – yesterday announced that he would instead sign it into law (this is the same individual, of course, who unequivocally vowed when seeking the Democratic nomination to support a filibuster of “any bill that includes retroactive immunity for telecom[s],” only to turn around – once he had the nomination secure — and not only vote against such a filibuster, but to vote in favor of the underlying bill itself, so this is perfectly consistent with his past conduct). As a result, the final version of the Levin/McCain bill will be enshrined as law this week as part of the the 2012 National Defense Authorization Act (NDAA). I wrote about the primary provisions and implications of this bill last week, and won’t repeat those points here.
The ACLU said last night that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.” Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”
Both groups pointed out that this is the first time indefinite detention has been enshrined in law since the McCarthy era of the 1950s, when — as the ACLU put it — “President Truman had the courage to veto” the Internal Security Act of 1950 on the ground that it “would make a mockery of our Bill of Rights” and then watched Congress override the veto. That Act authorized the imprisonment of Communists and other “subversives” without the necessity of full trials or due process (many of the most egregious provisions of that bill were repealed by the 1971 Non-Detention Act, and are now being rejuvenated by these War on Terror policies of indefinite detention). President Obama, needless to say, is not Harry Truman. He’s not even the Candidate Obama of 2008 who repeatedly insisted that due process and security were not mutually exclusive and who condemned indefinite detention as “black hole” injustice.
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of “a war that appears to have no end”.
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US and applies the established principle that combatants in any war are subject to military detention.
The legislation’s supporters in Congress say it simply codifies existing practice, such as the indefinite detention of alleged terrorists at Guantánamo Bay. But the law’s critics describe it as a draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country.
Senator Lindsey Graham said the extraordinary measures were necessary because terrorism suspects were wholly different to regular criminals.
“We’re facing an enemy, not a common criminal organisation, who will do anything and everything possible to destroy our way of life,” he said. “When you join al-Qaida you haven’t joined the mafia, you haven’t joined a gang. You’ve joined people who are bent on our destruction and who are a military threat.”
Graham added that it was right that Americans should be subject to the detention law as well as foreigners. “It is not unfair to make an American citizen account for the fact that they decided to help Al Qaeda to kill us all and hold them as long as it takes to find intelligence about what may be coming next,” he said. “And when they say, ‘I want my lawyer,’ you tell them, ‘Shut up. You don’t get a lawyer.’”
Other senators supported the new powers on the grounds that al-Qaida was fighting a war inside the US and that its followers should be treated as combatants, not civilians with constitutional protections.
But another conservative senator, Rand Paul, a strong libertarian, has said “detaining citizens without a court trial is not American” and that if the law passes “the terrorists have won”.
“We’re talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk,” he said. “Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts.”
Paul was backed by Senator Dianne Feinstein.
“Congress is essentially authorising the indefinite imprisonment of American citizens, without charge,” she said. “We are not a nation that locks up its citizens without charge.”
So let it be noted that Obama here has followed the line of the most conservative Republicans.
The One Big Issue has just been inserted into the 2012 presidential election campaign: the Supreme Court will hear a case challenging Obama’s healthcare law. The decision – whether the healthcare reform act, specifically the individual mandate requiring all citizens to purchase healthcare insurance, is constitutional or not – will come in late June 2012, in the midst of the presidential campaign.
As blogged about earlier on here, the healthcare issue is the one big rallying point for conservatives against Obama. If the Supreme Court strikes it down, we may regard Obama’s presidential term as a failure. Moreover, if this Court strikes down the individual mandate as in violation of the Commerce Clause (which allows the federal government to regulate the economy), the floodgates are open. To put it bluntly, the entire regulatory and welfare structure in America as constructed since FDR’s 1930s then comes into jeopardy. It may become the end of the New Deal.
That’s of course the wet dream of every contemporary Tea Partier and Republican. So watch out, as the US economy may be catapulted back to the late 1700s by a conservative Supreme Court…
The Supreme Court on Monday agreed to hear a challenge to the 2010 health care overhaul law, President Obama’s signature legislative achievement. The development set the stage for oral arguments by March and a decision in late June, in the midst of the 2012 presidential campaign.
The court’s decision to step in had been expected, but Monday’s order answered many questions about just how the case would proceed. Indeed, it offered a roadmap toward a ruling that will help define the legacy of the Supreme Court under Chief Justice John G. Roberts Jr.
Appeals from three courts had been vying for the justices’ attention, presenting an array of issues beyond the central one of whether Congress has the constitutional power to require people to purchase health insurance or face a penalty through the so-called individual mandate.
The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”
The appeals court went no further, though, severing the mandate from the rest of the law.
On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.
A brilliant piece in The New Yorker by Jeffrey Toobin about Supreme Court Justice Clarence Thomas. Thomas, appointed by George H. Bush, is arguably the most conservative Justice on the Court since the 1930s. He adheres to a very strict originalist and textualist reading of the Constitution, meaning that he believes it should be applied to the twenty-first century the way the Founders intended it for society in the late eighteenth century (whoever came up with this comically absurd idea should receive a prize). In addition to that, unlike the other textualist Justices Antonin Scalia and Samuel Alito, Thomas has no qualm about ignoring precendent in court rulings: when he thinks a previous decision is wrong in his interpretation of the Constitution, he will overturn it. In Thomas’ case, this also means historically exploring how the inhabitants of the thirteen American colonies two-and-a-half century ago meant this or that piece of law.
Adhering to a very strict originalist interpretation of the Constitution means that you believe that only a very small, limited government is constitutionally allowed (just like it was intended back then). If if were up to justices like Thomas, the US government would have no business regulating anything in the American economy or society (although they have, of course, no qualms about executive branch overreach when it comes to military affairs or torture). This leads to predictable conservative positions on such issues as gun rights and federalism, but also – and here it comes – on healthcare. The Obama administration has relied on a ‘broad’ interpretation of the Commerce Clause, which by New Deal-era judicial interpretation has allowed the federal government to intervene in the (trans-state) economy, to mandate individuals to buy health insurance. But it is very much the question whether the current conservative Court, including Justice Thomas, will uphold this interpretation of the Commerce Clause. It is very much possible that Obama’s healthcare reform law will sometime soon be judged unconstitutional by the Supreme Court.
Why is this piece on Clarence Thomas so relevant in this context? Well, because according to Toobin, Justice Thomas’ once extreme positions on various issues he has held since his 1991 confirmation have in the past twenty years become more mainstream. Take, for example, the gun rights issue. Among conservatives today, it is commonplace to argue that the lines in the Constitution about ‘the right to keep and bear arms’ apply to individuals, allowing personal gun rights. But just two decades ago (I didn’t know this), this was considered a radical position in a legal profession that held that the lines apply to state militias only, thus warranting more strict regulation on guns. It was Thomas who came up with the former interpretation, striking down Bill Clinton’s 1999 Brady Bill, and ever since, gun rights in the US have expanded. The same thing has happened on other issues: Thomas’ positions, at first considered radical, move the borders of the acceptable and allow judicial discourse to shift rightwards.
In the era that has seen the rise of the Tea Party out of protests against healthcare reform, the same thing could happen to Obama’s laws. Or, the piece warns, even more broadly to the entire 1930s New Deal-era constellation of laws and regulation that have awarded the federal government a role in protecting the people against the worst excesses of capitalism. Clarence Thomas and his wife are frequent speakers and ardent supporters of the Tea Party and other manifestations of extreme rightwing politics. These people want to take the economy back to the 1920s law of the jungle. In the words of Walter Russell Mead at the American Interest, their goal is to bring the Blue Empire down…
So read this must-read profile of Clarence Thomas to see why he has already been compared to Lord of the Rings’ Frodo – an overlooked actor slowly but steadily moving towards his goal, not taken seriously by his opponents until it is too late.
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
The conventional view of Thomas takes his lack of participation at oral argument as a kind of metaphor. The silent Justice is said to be an intellectual nonentity, a cipher for his similarly conservative colleague, Antonin Scalia. But those who follow the Court closely find this stereotype wrong in every particular. Thomas has long been a favorite of conservatives, but they admire the Justice for how he gives voice to their cause, not just because he votes their way. “Of the nine Justices presently on the Court, he is the one whose opinions I enjoy reading the most,” Steve Calabresi, a professor at the Northwestern University School of Law and a co-founder of the Federalist Society, said. “They are very scholarly, with lots of historical sources, and his views are the most principled, even among the conservatives. He has staked out some bold positions, and then the Court has set out and moved in his direction.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.
In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.
Michael Lind has an interesting political analysis up at Salon.com on the three fundamentalisms that nowadays mark the Republican right: Biblical fundamentalism, constitutional fundamentalism and market fundamentalism. I think this is a way of putting things that is largely correct. The Republican Party is now so far removed from any other political party in the Western world that it can only be described in these terms.
It does not explain, however, the seeming contradictions in this fundamentalist philosophy; for example, how can you adhere to a hardcore market fundamentalism along the lines of Friedrich Hayek and Ayn Rand, and at the same time claim to be a Bible-following Christian? After all, the teachings of Christ have nothing to do with considering selfishness a virtue. Rand, who along with God and the Founding Fathers is always named the greatest inspiration for every Republican presidential candidate, herself proclaimed to be anti-Christian in her ‘thinking’.
Lind also shows how the intellectual project of re-constituting a moderate conservatism as a political ideology in the 1960s led, by and large propelled by the rise of evangelical Protestantism and the presidency of Ronald Reagan, to the extremist fundamentalism that nowadays marks the Republican Party. All of the hallmarks of Biblical, constitutional and market fundamentalism can be found, for example, in the Tea Party and Sarah Palin.
What I’m worried about (as if the adherence to a triple fundamentalism by one of the world’s two most important political parties is not frightening enough) is the emergence of a similar kind of orthodoxy emerging in the Netherlands today. Whereas the Dutch polity used to be marked by agreement across the political spectrum on such issues as the multicultural society (in hindsight perhaps a bit too much consensus in that respect), political equality, tolerance for differences and care for weaker groups in society, the governing coalition nowadays seems to converge ideologically to adherence to a monocultural society, treating people with non-Dutch backgrounds as second-class citizens, and implementing a by European standards pretty hardcore market fundamentalism.
In other words: rightwing orthodoxy in Europe, at least in the Netherlands, is intensifying and growing more extreme just like it has in the US. The question is how those still believing in political equality, a rights-based citizenship, and a market tempered by government interference can defend themselves in an increasingly hostile climate, in which such very basic and once universally accepted notions are painted ‘elitist’.
Anyway, here’s Lind’s piece:
In contradiction to the hostility to Darwinism shared by many of its constituents, the American right is evolving rapidly before our eyes. The project of creating an American version of Burkean conservatism has collapsed. What has replaced it is best described as triple fundamentalism — a synthesis of Biblical fundamentalism, constitutional fundamentalism and market fundamentalism.
Following World War II, the American right was a miscellany of marginal, embittered subcultures — anti-New Dealers, isolationists, paranoid anticommunists, anti-semites and white supremacists. Russell Kirk and others associated with William F. Buckley Jr.’s National Review sought to Americanize a version of high-toned British Burkean conservatism. While the eighteenth century British parliamentarian was embraced by conservatives for his opposition to the French Revolution, Edmund Burke, a champion of the rights of Britain’s Indian, Irish and American subjects, could also be claimed by liberals like Yale Law School’s Alexander Bickel, who preferred gradual, cautious reform to radical social experimentation. In its liberal as in its conservative forms, Burkeanism disdains reaction and radicalism alike, and favors change in lesser things when necessary to maintain the continuity of more fundamental institutions and values.
The religious equivalent of Burkean politics is orthodoxy, not fundamentalism. Orthodoxy means the continuity of a tradition, as interpreted by an authoritative body of experts, such as priests, rabbis or mullahs. The term “fundamentalism” originated in the early twentieth century as a description of reactionary evangelical Protestants in the U.S. who rejected liberal Protestantism and modern evolutionary science and insisted on the inerrancy of the Bible. The phrase is nowadays applied indiscriminately and often inaccurately to various religious movements, some of which, in the Catholic, Jewish and Muslim traditions are better described as ultra-orthodox.
The increasingly-Southernized American Right has transferred the fundamentalist Protestant mentality from the sphere of religion to the spheres of law and the economy. Protestant fundamentalism is now joined by constitutional fundamentalism and market fundamentalism.
In all three cases, the pattern is the same. There is the eternal Truth that never varies — the will of God, the principles of the Founding Fathers, the so-called laws of the free market. There are the scriptures which explain the eternal truths — the King James Bible, in the case of religious fundamentalism, the Constitution or the Federalist Papers, in the case of constitutional fundamentalism, and Friedrich von Hayek’s The Road to Serfdom in the case of market fundamentalism (The Fountainhead or Atlas Shrugged by Ayn Rand can be substituted for Hayek, on request).
“There’s only one book you ever need to read,” a Bible-believin’ Texan Baptist once assured me. He was two books short of a populist conservative bookshelf. But in the age of post-intellectual, fundamentalist conservatism, three books are sufficient to make anyone the equal of the most erudite intellectual. The books need not actually be read, and for the most part probably are not; it is enough, in argument, to thump the Bible, and to thump “The Road to Serfdom” and “Atlas Shrugged,” too.
Modern American market fundamentalism, too, is recognizably modeled on the fundamentalist Protestant version of church history, even though market fundamentalists need not be Christian conservatives. Ignoring the long history of tariffs, land grants, military procurement and mixed public-private corporations in the United States, the market fundamentalists pretend that the U.S. was governed by the laws of the market until Franklin D. Roosevelt’s New Deal replaced capitalism with socialism (or statism, or fascism, or whatever Amity Shlaes or Jonah Goldberg want to call it). Russell Kirk wrote that any true conservative would be a socialist before he would be a libertarian. But then he was a Burkean High Church conservative.
The rise of triple fundamentalism on the American right creates a crisis of political discourse in the United States. Back when conservatism was orthodox and traditional, rather than fundamentalist and counter-revolutionary, conservatives could engage in friendly debates with liberals, and minds on both sides could now and then be changed. But if your sect alone understands the True Religion and the True Constitution and the Laws of the Market, then there is no point in debate. All those who disagree with you are heretics, to be defeated, whether or not they are converted.
For their part, progressives have no idea of how to respond to the emergent right’s triple fundamentalism. Today it is the left, not the right, that is Burkean in America. Modern American liberalism is disillusioned, to the point of defeatism, by the frustration of the utopian hopes of 1960s liberalism in the Age of Reagan that followed and has not yet ended. Today it is liberals, not conservatives, who tend to be cautious and incremental and skeptical to a fault about the prospects for reform, while it is the right that wants to blow up the U.S. economy and start all over, on the basis of the doctrines of two Austrian professors and a Russian émigré novelist.
Obama’s shame is getting bigger and bigger. Yesterday, 250 of America’s most eminent legal scholars have signed a letter protesting the inhumane treatment of Bradley Manning – the 23-year old soldier who was the original whistleblower to WikiLeaks. The signatories include Laurence Tribe of Harvard University, a foremost authority on US constitutional law, former professor of Obama, and backer of his 2008 campaign.
As featured extensively on the Internet (including this blog, see here, here, here and here) and lately also in the mainstream media, Manning is treated in ways that are cruel and inhumane, if not amounting to torture. He is permanently stripped of clothes during the night and public morning inspection; solitarily confined for 23 hours a day; permanently shackled during his one hour of outside-cell time; and under constant surveillance, even though he is not suicidal.
Manning’s treatment, clearly unlawful and unconstitutional, seems very much meant to intimidate future whistleblowers. All this is occurring under the watchful eye of Barack Obama. So no wonder the American legal establishment is (finally) starting to protest – including regarding the constitutionality of Manning’s treatment. Read the full letter here.
Bradley Manning is the soldier charged with leaking US government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.
The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application…of… procedures calculated to disrupt profoundly the senses or the personality.”
Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention.
The administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.
If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pretrial punishment. As the State Department’s P.J. Crowley put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.
The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does, not what it says.
President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions—and immediately end those that cannot withstand the light of day.
Some signatories: Brucke Ackerman, Jack Balkin, Kwame Anthony Appiah, Alexander M. Capron, Norman Dorsen, Michael W. Doyle, Randall Kennedy, Mitchell Lasser, Sanford Levinson, David Luban, Frank I. Michelman, Robert B. Reich, Kermit Roosevelt, Kim Scheppele, Alec Stone Sweet, Laurence H. Tribe, and more than 250 others. Check the full list here.
For more about this, read Glenn Greenwald. Also check the Bradley Manning Support Network. You can donate to Bradley Manning’s legal defence fund here.
Ever since the start of the Libyan military intervention, critics in the US (from both the left and the right) have contended that in the American constitutional context it is ‘illegal’. That is, according to the Constitution only Congress has the power to declare war, and since President Obama has not gone to Congress to ask for such a declaration but rather ordered the deployment of military forces unilaterally, this war is to be considered domestically unconstitutional. Particularly on the left, this is seen as evidence of the continued growth of the ‘imperial presidency’ under Obama, and it comes particularly hard since Obama is a constitutional scholar and previously criticized Bush for unilaterally going to war in Iraq (there was a 2002 Congressional vote to authorize the use of military force in Iraq, but this was not a declaration of war).
There is a difference here with other countries. In the United Kingdom, for example, David Cameron asked the House of Commons for permission to deploy military forces (he got it near-unanimously), and in the Netherlands, an ‘article 100 letter’ was submitted to the Second Chamber by the cabinet. Here, parliaments got a vote on matters of war and peace, and that should always be the preferred manner (when time and necessity allow it).
Scott Lemieux at the American Prospect, however, points out that Obama is hardly the first president to go to war without an explicit Congressional declaration of war. In fact, Congress hasn’t formally declared war since World War II. Instead, it has always delegated the power to use military force to the president. This was the case in Korea, Vietnam, and Iraq (twice), although it sometimes happened ex ante and sometimes ex post (worryingly enough). The War Powers Resolution, enacted post-Vietnam, limits the president’s use of troops abroad without approval to 60 days, but this seems to be dead letter.
Lemieux argues, however, that the power to limit the president’s use of military force rests primarily with Congress itself, and that it should act if it wishes to do so. Also, we should really start to worry when the executive starts to act against the wishes of Congress (which Bush did with its illegal wiretapping program, and Obama seems to continue). True that may be; but I’m still happy to live in a country in which the executive sees it as a constitutional obligation to go to parliament when war is declared. Moreover, Hillary Clinton’s remarks that the administration would continue bombing even if Congress would vote against it are pretty worrisome (read Glenn Greenwald on this). This administration, like the one before it, seems to believe that there is nothing Congress can do to limit its powers (even though this time, there is a humanitarian rationale and a UN resolution).
Nevertheless, Lemieux’s an interesting piece if you’re interested in history and American constitutional law.
The actual text of the Constitution gives substantial authority over war powers to Congress. Legal scholars such as Yale’s Bruce Ackerman and the University of Colorado’s Paul Campos have each made a credible case that Obama’s unilateral military action subverts or directly violates the Constitution. But from the standpoint of established practice, President Obama’s intervention in Libya is hardly an anomaly. For many decades, presidents have used the large military at their disposal to initiate conflict, often without congressional authorization. The explicit power to declare war has not been invoked by Congress since World War II.
The modern rise of unilateral presidential power is the subject a recent provocative book by legal scholars Eric Posner and Adrian Vermuele, The Executive Unbound. In Posner and Vermuele’s view, James Madison’s constraints on executive power — the “checks and balances” you’re always hearing so much about — are essentially no longer operative; by and large, it’s the president, not a majority of both houses of Congress, that decides to go to war.
Whether or not this is what the framers intended, this is the reality. So the question we need to ask now is how we got so far from the essential structure of the Constitution.
Surprisingly, it’s not that the president has systematically ignored or overridden Congress. In fact, the presidency has become the dominant war-making power precisely because this is how a majority of legislators want it. The president initiated major wars in Korea, Vietnam, and Iraq (twice), and in all of these cases — sometimes before the fact, sometimes after — Congress has passed the buck, delegating to the president the power to authorize force rather than declaring war itself. Senators and congressmen and women are similarly happy to pass on the blame when things go bad. Hillary Clinton’s assertion that her vote for the 2002 authorization for President George W. Bush to use force in Iraq was not an authorization for the preemptive war Bush actually fought is an instructive illustration of how Congress tries to have it both ways.
Even courts have found that Congress has abdicated its power to the executive. In his famous concurrence in Youngstown Sheet and Tube v. Sawyer, a case that involved President Harry Truman’s seizure of steel mills during the Korean War, Justice Robert Jackson noted that the Court “may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.” Statutes passed by Congress matter only if Congress asserts its power in showdowns with the president. Generally, it hasn’t.
As Posner and Vermuele point out, Congress has occasionally reacted after the fact to presidential abuses of power. The post-Vietnam War Powers Resolution, for example, only authorizes the president to send troops abroad for up to 60 days without congressional approval. But these legislative exercises have been toothless, if not dead letters. Without any enforcement mechanism, the War Powers Resolution and other congressional acts are essentially symbolic. More recently, the reaction to the airstrikes against Libya is quite typical: Individual legislators may grumble, but there’s no legislative action.
Read more here (and read Glenn Greenwald for a counterpoint).
En weer een aardig voorbeeld van dommige, kritiekloze verslaggeving over de Verenigde Staten in de Nederlandse media. Dit maal is het de NRC.
Elf Amerikaanse staten leggen zich niet neer bij de hervorming van de gezondheidszorg, waarmee het Huis van Afgevaardigden zondagavond heeft ingestemd. Ze willen een rechtszaak beginnen tegen de nieuwe wet.
In de betreffende elf staten, zijn de Republikeinen aan de macht. Zij verzetten zich tegen de verplichte basisverzekering. Die is volgens hen in strijd met de Amerikaanse grondwet en schendt de soevereiniteit van alle vijftig staten waaruit de Verenigde Staten bestaan. Zodra president Obama de wet ondertekent – dat is waarschijnlijk vandaag – , zullen de ministers van Justitie van deze staten juridische stappen ondernemen.
Het gaat om de staten Florida, Virginia, Pennsylvania, South Carolina, Nebraska, Texas, Utah, North Dakota, South Dakota, Alabama en Washington. Idaho, dat vorige week de verplichte basisverzekering verbood, sluit zich mogelijk bij ze aan.
O, o, wat nu. Never mind dat deze rechtszaken in de V.S. zelf door juristen als, nou ja, kansloos worden gezien. Artikel 1, Sectie 8 van de Constitution – de “Commerce Clause” - geeft de federale regering bevoegdheden om de nationale economie te reguleren. Hierop is (ik noem maar wat) de hele New Deal gebaseerd. En het is de constitutionaliteit van health care reform die nu door deze Republikeinse politici in de staten wordt aangevochten.
But to review, Article I Section 8 of the constitution gives authorizes congress:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
There’s long been a strain of thought which says this should be interpreted simply as a prohibition on state-level trade barriers with Commerce “among the several States” understood as basically about transporting goods across state lines. But from the beginning, the federal government’s powers have been interpreted rather more expansively than that. We had the Louisiana Purchase, the Bank of the United States, Henry Clay’s “American System,” a transcontinental railroad, land grant colleges, etc. And in particular since the New Deal the commerce clause has always been understood as granting wide-ranging authority to regulate the national economy.
Over the past 20 years the Supreme Court’s conservative majority has started to reel this authority in somewhat, declaring that the Violence Against Women Act and the Gun Free Schools Act aren’t really about commerce and that economic impacts were cited in the legislative history as just a kind of pretext. But nobody can seriously deny that health reform is a bona fide regulation of economic activity for an economic purpose. I know people who claim to seriously believe that it would be a good idea for the Supreme Court to reverse the past 75 years of jurisprudence and just enact libertarianism by fiat (I feel like these people aren’t thinking seriously about the consequences of this) but that’s a vague aspiration, not something a lawsuit launched in 2010 is going to accomplish.
The Wonk Room:
[These] lawsuits seem as frivolous as the tort cases Republicans rally against. As Professor Timothy Jost of Washington & Lee University School of Law explained this morning on Washington Journal, “under the constitution as it has been interpreted by the Supreme Court — and that is really our constitution. Everyone has their own interpretation, but constitutional law is made by the Supreme Court — over the last 80 years, I do not see any serious problem with this legislation, and Congress did not either.” Jost noted that the individual requirement, which does not apply to anyone who is under the filing limit of $12,000 for individuals or $16,000 for couples or levy a criminal penalty for those who go without insurance — will likely stand up to a constitutional challenge.
“This was national scripture, a piece of our Constitution’s history,” [Toler] said of her find in November. “It was difficult to keep my hands from trembling.”
As other researchers “realized what was happening, there was a sort of hushed awe that settled over the reading room,” Toler said. “One of them said the hair on her arms stood on end.”