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.
I think George Will has been great, and still has the capacity, but it seems to me that at this late date he just mails it in at times.
He may have been a draft dodger, but he ain't no RINO!
Well, they can try. I recall a series of laws collectively called "the Boland Amendment" back in the seventies. Dead letters today, and in fact never enforceable. We also have had Supreme Court decisions ignored and flouted by the Executive in the past, with the refrain, "the court has spoken, now let them enforce it."
I'm having some difficulty finding it, but as I recall the particulars, the act notes where it doesn't apply, and this is a reference to it.
Whose are larger? ;)
Wrong. He is a brilliant man. You should not confuse intelligence with pompousness. Beyond that, your RINO comment is laughable.
The National Review proves yet again it is no longer conservative and just a mouthpiece for the party of bigger government
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.
-- such a basis for an impeachment would never pass constitutional muster. He must be found guilty of "high crimes or Misdemeanors".
dirtboy:
I disagree. Andrew Johnson came within one vote of removal from office over what were basically political differences.
There is no appeal to SCOTUS if a president is impeached and removed.
If the President appealed a specious impeachment to the people & to the USSC on Constitutional grounds , -- and refused to leave the white house until heard, -- which dept/agency could Congress use to evict him?
And THERE is quite a loop. The surveillance is of foreign agents, with specific recognition in the cited law as not needing warrants. Excluding it because they happen to call people in the U.S. from time to time is silly.
Anyways, the President is authorized and empowered by the Constitution to be the CINC. Inerent in executing this duty is collecting military information. Again, the gray area is not in collecting the information for military and diplomatic intelligence purposes. It is not a civil or criminal prosecution, nor abusing collection resources for politics.
The new President.
lepton wrote:
The new President.
Debatable point..
Only if the new, appointed president was accepted by the executive branch dept heads as the valid Chief Executive.
-- They too are obligated to defend the Constitution as written.
It is not written to allow impeachments for specious political matters.
Ummmm... not really. First, the exercise of interest by one branch against another is exactly what was envisioned by the framers as a way of limiting their powers. How this is resolved is intended to be primarily under the clear wording of the Constitution, secondarily through the political process. The Federal courts role in that regard was originally regarded as quite small.
Second, under Article III, Congress has ultimate authority over the Federal Courts, both in the manner of their organization and in the matter of their jurisdiction "with such exceptions, and under such regulations as the Congress shall make." Contrary to popular opinion, the three branches of government are not co-equal, they were not designed to be co-equal, and in particular the courts were NOT intended to be the final authority. That power is reserved to the authority that granted the Constitution of the United States: the People.
And what "explicit constitutional authority" are we discussing?
Thank you, Mark Levin, for your clear reasoning and understanding of Constitutional law. I hope you're the next SCOTUS nominee.
Exactly!
Civil War, basically, because that is what such an action would invoke.
A bit wrong here. A State of the Union address was never mandated by the Constitution. A written form (which could be made in the form of a speech) was mentioned in the Constitution...
dvwjr
Yup, you're right. I don't even have to look it up. :)
My point was though, that that reporting is one of the few mandated specific duties.
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