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.
You're absolutely right. I've noticed quite a bit of that sort of thing around here myself from a sizable minority of posters lately. It's almost as if a particular conservative pundit or politician (in this case, George Will) doesn't agree with certain posters about everything, then they can't possibly be right about anything.
"As a reverent admirer of George Will, it pains me to say that his diatribe today against the National Security Agency's terrorist-surveillance program ..."
"As a reverent admirer of George Will, it pains me to say that his diatribe today against the National Security Agency's terrorist-surveillance program ..."
What great thing has George done? Did he discover a Milton Friedman concept on how markets work? Did he name the Russians and evil empire or name an Axis of evil.Did he have anything to do with bring down any of the evil empires? No. George Will has written a couple of weekly columns talking about others.
We need to remember that George Washington was presiding officer at the Convention, and that his experience as commander-in-chief during the war was exactly as stated above. AS CINC, Lincoln gave not an inch on warpowers, nor did FDR. As for impeachment, who does not agree that the Radical assault on Andrew Jackson was a revolutionary action, since it impeached him for defending his constitutional authority. I fail to see any revolutionary furvor in the Democratic party. If they did gain a majority, they would ruin every chance of winning the presidency in 2008 if they attempted a coup d'etat on constitutional grounds.
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