First we have to ask ourselves are we judging a law in its application or are determining if the law itself is Constitution?
If we are judging the law and its application that gets the court into the very precarious business of substituting its judgment for that of the commander-in-chief, the very person designated by Congress, to make the judgment of the existence or nonexistence of an emergency and the appropriate steps to be taken in the event of such an emergency. Until we entered an age in which courts enjoin presidential actions because they don't like the contents of one of his speeches, we would all have said that it is inconceivable that a court would substitute its judgment for that of the commander-in-chief in matters military.
Today, as our federal judiciary abandons even pretext to adherence to the Constitution, we must expect anything.
If we consider whether this statute is itself constitutional, we're opening a can of worms for conservatives.
We conservatives rail because Congress has abdicated its constitutional responsibilities to unnamed, often unaccountable bureaucrats who make regulations establishing crimes, prosecute alleged violations, adjudicate guilt and innocence, and inflict punishment. Here we see the article one branch of government abdicating its responsibility to the executive branch to tax-and-spend. Much of this is the result of a metastasizing cancer on Congress which is shirking responsibilities in every area but much of it can also be blamed on technology. In the age of atomic bomb bearing Intercontinental ballistic missiles, we must act quickly in national emergencies and Congress certainly is not the place to look for decisive action.
Perhaps the most important speech rendered by a senator in the Cavanaugh hearings (albeit not the decisive speeches which were delivered by Cavanaugh and by Graham) was delivered by Sen. Ben Sasse who observed that the reason the Cavanaugh hearings have become so contentious was that Congress had abdicated its responsibility to govern to the supreme court and inferior courts and because the federal courts had arrogated unto themselves the powers of the article 1 branch of government.
I consider the grant of power to the president to be unconstitutional as it is currently structured. I am, however, also a pragmatist who understands that to declare this statute in this circumstance to be unconstitutional is to do what Bill Clinton refused to do on the issue of campaign finance, to wit, unilaterally disarm.
So we are forced into a false choice, supporting a statute which is unconstitutional and which leads to all manner of miseries such as deficit spending, crony capitalism, shadow bureaucracies, and 1200 page continuing resolutions on the one hand or watching the sure and certain death of the conservatism as it is washed away by a wave of socialist voting illegal immigrants.
