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To: Tom D.

York overemphasizes what the court of review actually said; the statements are dicta, assume that the premise is true, and do not carry the force of law.


37 posted on 02/12/2006 8:12:43 AM PST by choppermcgee
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To: choppermcgee

Some other case law - are you going to try and claim this all DICTA!

"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority." --The Amy Warwick (The "Prize Cases"), 67, U.S. 635, 668 (1862)

"The Founders in their wisdom made [the President] not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs," possessing "vast powers in relation to the outside world." Ludecke v. Watkins, 335 U.S. 160, 173 (1948).

Foreign affairs power the “exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

Protecting the national security is also Presidential domain. Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982). The President's constitutional primacy flows from both his unique position in the constitutional structure, and from the specific grants of authority in Article II that make the President both the Chief Executive of the Nation and the Commander in Chief. See Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982).

As Hamilton explained: "the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency."

”The command and application of the public force . . . to maintain peace, and to resist foreign invasion" are executive powers. Application of Yamashita, 327 U.S. 1, 12 (1946). The authority to protect national security is not limited to actions necessary for "victories in the field." Id. The authority over national security "carries with it the inherent power to guard against the immediate renewal of the conflict." Id.

The President “has broad discretion in determining when the public emergency is such as to give rise to the necessity" for emergency measures. Kahanamoku, 327 U.S. at 336.

"[T]he President has independent authority to repel aggressive acts by third parties even without specific statutory authorization." Campbell v. Clinton, 203 F.3d 19 The Constitution gives the power to the President “to preserve order and insure the public safety . . . . when other branches of the government . . . functioning would itself threaten the public safety." Duncan v. Kahanamoku, 327 U.S. 304, 335 (1946) (Stone, C.J., concurring).

The courts have affirmed it is President’s constitutional responsibility to respond to that threat with whatever means are necessary. See, e.g., Prize Cases, 67 U.S. at 635.

The Supreme Court has made clear that it will not construe legislative powers so as to prevent the President "from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).


39 posted on 02/12/2006 7:39:56 PM PST by excludethis
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To: choppermcgee
York overemphasizes what the court of review actually said; the statements are dicta, assume that the premise is true, and do not carry the force of law.

Awwwww, ain't that sweet?! You signed up just to tell us that, did you? SMOOCH!!

40 posted on 02/14/2006 9:35:55 AM PST by Coop (FR = a lotta talk, but little action)
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