Posted on 02/16/2006 11:14:47 AM PST by wcdukenfield
Unfortunately, George Will believes that Congress has the power to micromanage the president's explicit commander-in-chief responsibilities. He reads the "necessary and proper clause" the way activist judges read the commerce clause, i.e., without context or limitation.
Will properly notes that the Constitution "empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws ’necessary and proper’ for the execution of all presidential powers." [Will's emphasis.]
But as Joseph Story, the great Supreme Court justice and constitutional scholar correctly wrote: "The clause, in its just sense, then, does not enlarge any other power, specifically granted; nor is it the grant of any new power. It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution" (A Familiar Exposition of the Constitution of the United States, Section 208).
James Wilson was the principal author of the necessary and proper clause. At the Pennsylvania ratifying convention, he explained: "Necessary and proper [are] limited and defined by the following, 'for carrying into execution the foregoing powers' it is saying no more than that the powers we have already particularly given, shall be effectually carried into execution" (The Heritage Guide to the Constitution, page 147).
The necessary and proper clause does not empower Congress to seize explicit constitutional authority from the president. Congress has the specific authority to defund the NSA program or any aspect of the war on terrorism. There's no doubt about that. This is the ultimate power over war. But it does not have the authority to seize power from the executive branch to micromanage wartime decisions. To the extent that FISA impedes on president's authority, it's unconstitutional. In other words, the Constitution not only places checks on the president's power, but it limits Congress's power as well. Hence, we have the doctrine and reality of separation of powers.
Will, Bob Barr, and a host of other conservatives appear to have bought into the idea that our civil liberties are best protected by either Congress or the judiciary. And so they make weak arguments against a president exercising his legitimate constitutional authority, e.g., intercepting enemy communications during war — warning about unchecked power and various hysterical scenarios. There's no historical or constitutional precedent for their position. Indeed, imagine the practical implications. As Story wrote:
"Timidity, indecision, obstinacy, pride, and sluggishness must mingle in a greater or less degree, in all numerous bodies, and render their councils inert and imbecile, and their military operations slow and uncertain. There is, then, true wisdom and policy in confiding the command of the army and navy to the president, since it will ensure activity, responsibility, and firmness, in public emergencies" (A Familiar Exposition of the Constitution of the United States, Section 278). The Framers did not want Congress micromanaging war-time decisions. And considering that the Constitution leaves it largely up to the elected branches to establish the judiciary and determine its authority, they certainly didn’t empower judges to substitute their decisions for those of the commander-in-chief.
Exquisite bs!
How long before Ann Coulter calls for him to be poisoned, while her good friends the "true" conservatives, teehee from the sidelines? LOL.
You are so confused. If necessary and proper means what Will says it does, which was explicitly rejected by the framers, then of course Congress has the power to micromanage all aspects of the executive. That's the point! As for a check on the president, go back to the Constitution -- Congress can defund the program, it can defund the war, it can impeach ... it has much power. Just not the power to run the executive branch. This isn't a mobocracy or parliamentary system.
It is amusing to see people on this board when confronted with a statement that they don't agree with...all of a sudden, that person is a RINO or God forbid, A LIBERAL...
I've seen every republican politician/pundit called one or the other on this board...hilarious....
No, Congress can't tell the executive whom to arrest or where to position troops or which lines to surveil. Those are executive decisions. It can, however, limit the scope of action of his agencies to what Congress decides is necessary for him to do his job. Congress gave him these agencies, and Congress can limit what it gives to him.
And the "checks" that you mention are utterly unrealistic. Making a choice between not having the ability to defend ourselves at all and living with presidential abuses of power is not a "check"; it's a joke. And talking about impeachment merely begs the question. Impeachment is for violations of the law, but if Congress can't pass a law regulating him, there's no law for him to violate.
You are giving your opinion, based on literally nothing. There is no presidential abuse of power. You have bought into the notion that our civil liberties are endangered by the president exercising his legitimate power. You seem to think that without the courts and Congress interceding, we are endangered. Simply not true. The president, in this case, is free to intercept enemy communications, just as he is free to kill the enemy, to destroy their cities, to blow up their homes, etc. -- all the things that occur during war. You want judicial review? The courts have ruled exactly as I have said. You want some history? Every president has viewed and exercised his power this way, and Congress, until now, has concurred. Now, apart from your opinion and fears, how about some history or something else?
One only need look at the ringleaders to know where this tone is originating, both on and off Free Republic.
I would like to know why Levin and his ilk devote so much time to criticizing our allies.
Doesn't anybody believe the liberal Democrats are the enemy anymore?
Congress doesn't give the president his commander-in-chief authority. The Constitution does. Once war is declared, in two joint resolutions, the president exercises his constitutional power. You confuse this explicit constitutional power with the creation of executive branch agencies. They are not explicitly provided for in the Constitution. Apples and oranges. This is the problem. You and many others are searching for arguments to support your fears. I don't accept your fears, and your arguments aren't based on any historical or legal substance.
Levin and his ilk ... responding to Will's criticism of the president (is the president an ally who Will is attacking?) You are pathetic.
Conservative-schmonservative. Rush Limbaugh has gotten on my last nerve with his shunning of the Republican party in favor of being simply "conservative". How meaningless.
Could you expand on what you posted, then?
Wow, quite a speech.... I find it hard to believe that Will's arguments are not based in historical fact. Quite clearly our Constitution sets forth checks and balances of power...as for the instant issue, I don't think you are being truthful when proclaiming the answer is so cut and dry...or "clear"... If anything, Consitutional issues are often quite foggy, including this one. Will's interpretation is reasonable, as is the President's. It's what we have a Supreme Court for--to decide the issue.
Define pathetic.
Meanwhile, I will remind you that Will's criticism is hardly a personal attack against President Bush, but rather a criticism about defining clear guidelines for the future that we have not asked for in past.
Perhaps Levin's piece is not an attack either, but I would still enjoy knowing why Will, and why now?
Have we nothing to say about liberals anymore? As another pointed out, the venom often seems directed at each other. For example, referring to someone who disagrees with you as "pathetic".
'nuff said.
Besides, terrorism is not the only new danger of this era. Another is the administration's argument that because the president is commander in chief, he is the "sole organ for the nation in foreign affairs."
That non sequitur is refuted by the Constitution's plain language, which empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws "necessary and proper" for the execution of all presidential powers .
Those powers do not include deciding that a law -- FISA, for example -- is somehow exempted from the presidential duty to "take care that the laws be faithfully executed."
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/15/AR2006021502003_pf.html
Mark Levin comments:
Unfortunately, George Will believes that Congress has the power to micromanage the president's explicit commander-in-chief responsibilities.
Albertas Child disagrees:
Unfortunately for Mark Levin, George Will is technically correct on this one. Congress can -- at least indirectly -- micromanage any executive power to whatever extent they deem necessary.
Will's bold words quoted just above are far from 'technically correct'. Mark has him pegged correctly.
The power of Congress to impeach a sitting President is basically unlimited. If the members of the House of Representatives decided tomorrow to impeach George W. Bush because they don't like Texans, and two-thirds of the members of the Senate agreed, then George W. Bush would be out of a job with absolutely no recourse other than to run again in 2008.
Good grief child; -- such a basis for an impeachment would never pass constitutional muster. He must be found guilty of "high crimes or Misdemeanors". -- Get a grip on your rhetoric.
He is an excellent writer and well thought out, but he's been around the loons so much and he wants so much to be well thought of. He is the media version of Sandra Day O'Conner. When they first came on the scene so much was expected and initially they delivered. As time passed, they melded into the squishy center. He is not a raving lib, and has more conservative values than most in the media, kinda like lindsay graham. Almost, but not quite my cup of tea.
Right on. will is also a geekish wuss!
LLS
That, and Mark would clean his clock!
LLS
I don't think Rush has shunned the GOP. But I do think his "conservatism" has veered into Crackpot Alley where he's been greeted by too many elected officials. The Shiavo matter comes to mind. But I don't want to take this thread off topic. Taking something reasonable (Will's article) and turning it into an outrage is what this thread is about.
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