Saturday, December 31, 2005
For Thine is the ... Power and the Glory
Gonzales and Hayden are too modest. They argue only that the September 14, 2001 Authorization for the Use of Force by Congress gave Bush the power to spy on U.S. citizens without a warrant. What they do not argue, because the Bush Administration is so meek and deferential, is that the Foreign Intelligence Surveillance Act of 1978 is unconstitutional. Any Act of Congress which infringes on the awesome power of the President as Commander-in-Chief is an unconstitutional violation of the separation of powers. What they also do not say, because they are such shrinking violets, is that the awesome President, due to his plenary authority as Commander-in-Chief, already has the inherent power to spy on U.S. citizens without a warrant, provided he says it's because of a foreign threat.
As regular readers of Andromeda know, Spiderman got his powers from a radioactive spider. The Fantastic Four got theirs from cosmic radiation. Wonderful radiation also gave superpowers to Doctor Octopus, Sandman, and many many more. But where does the President get his awesome powers? From the Constitution, of course! Probably, it was radioactive. So let's look at the Constitution and see where all those really cool powers are.
First, as the most important branch of government, the Executive Branch is listed first in the Constitution. Well, close to first. Right after the weak, puny Congress. Anyway, it can definitely kick sand in the face of that stupid Judiciary Branch. Unless the Judiciary Branch is bitten by a radioactive something.
Second, it is the President's tremendous military power which is so amazing. Naturally, the basic decision of whether or not to declare war is his and his alone. Except to the extent Congress already has that power. Which it does.
But the power to merely "declare" something, who really cares about that? It's the power to "punish ... Offenses against the Law of Nations" that really matters. Hmmm, that's Congress, too. But certainly it would be unquestionably wrong for the Congress to meddle around in the President's indisputable authority to set the "Rules concerning Captures on Land and Water"? No kidding, that's Congress, too. But how can a Commander-in-Chief be a commander-in-chief unless he at least has the right to set his own "rules for the government and regulation of the land and naval forces." Come on, that can't be a congressional power!
Well, that's fine, but it's the "executive"power which completely belongs to the President. So who calls forth the militia to EXECUTE the laws of the union? Yeah, yeah, that's right, it's the ... Congress? Then who calls the militia to "repel invasions"? That has to be the Prez -- foreign anything is his. No?
But the President is Commander-in-Chief, so he MUST be allowed to "organize" the militia. No? Arming them? No? Disciplining troops is a core authority of a commander -- that must be his and his alone. "Discipling the Militia" is Article I, Section 8, as well?
OK, OK, now hold on a second. Article II, Section II, gives the President the title "Commander in Chief," just as Article II, Section I, gives the President the executive power of the government. Well, obviously, the Congress could do nothing whatsoever that would infringe in any way on his executive power. Like passing laws telling him what to do.
But wait, they do that all the time. As the "executive," he merely executes the laws the Congress passes. The Congress gets to just tell him what to do.
But if his role as Commander-in-Chief is like his role as "Executive in Chief," then Congress could freely pass laws which tie the President's hands in punishing offenses against the law of nations, which completely constrain him concerning captures on land and water, which entirely box him in through government and regulation of the land and naval forces, etc. This would make him more like the "nation's top general," still having to go back to Congress for such daily military matters as permission to enter into a prisoner exchange.
Certainly, no one would think the drafters of the Constitution thought of George Washington that way, when he was called "Commander in Chief" during the American Revolution. Strangely, though, even he didn't think he had the authority to grant a simple furlough.
As regular readers of Andromeda know, Spiderman got his powers from a radioactive spider. The Fantastic Four got theirs from cosmic radiation. Wonderful radiation also gave superpowers to Doctor Octopus, Sandman, and many many more. But where does the President get his awesome powers? From the Constitution, of course! Probably, it was radioactive. So let's look at the Constitution and see where all those really cool powers are.
First, as the most important branch of government, the Executive Branch is listed first in the Constitution. Well, close to first. Right after the weak, puny Congress. Anyway, it can definitely kick sand in the face of that stupid Judiciary Branch. Unless the Judiciary Branch is bitten by a radioactive something.
Second, it is the President's tremendous military power which is so amazing. Naturally, the basic decision of whether or not to declare war is his and his alone. Except to the extent Congress already has that power. Which it does.
But the power to merely "declare" something, who really cares about that? It's the power to "punish ... Offenses against the Law of Nations" that really matters. Hmmm, that's Congress, too. But certainly it would be unquestionably wrong for the Congress to meddle around in the President's indisputable authority to set the "Rules concerning Captures on Land and Water"? No kidding, that's Congress, too. But how can a Commander-in-Chief be a commander-in-chief unless he at least has the right to set his own "rules for the government and regulation of the land and naval forces." Come on, that can't be a congressional power!
Well, that's fine, but it's the "executive"power which completely belongs to the President. So who calls forth the militia to EXECUTE the laws of the union? Yeah, yeah, that's right, it's the ... Congress? Then who calls the militia to "repel invasions"? That has to be the Prez -- foreign anything is his. No?
But the President is Commander-in-Chief, so he MUST be allowed to "organize" the militia. No? Arming them? No? Disciplining troops is a core authority of a commander -- that must be his and his alone. "Discipling the Militia" is Article I, Section 8, as well?
OK, OK, now hold on a second. Article II, Section II, gives the President the title "Commander in Chief," just as Article II, Section I, gives the President the executive power of the government. Well, obviously, the Congress could do nothing whatsoever that would infringe in any way on his executive power. Like passing laws telling him what to do.
But wait, they do that all the time. As the "executive," he merely executes the laws the Congress passes. The Congress gets to just tell him what to do.
But if his role as Commander-in-Chief is like his role as "Executive in Chief," then Congress could freely pass laws which tie the President's hands in punishing offenses against the law of nations, which completely constrain him concerning captures on land and water, which entirely box him in through government and regulation of the land and naval forces, etc. This would make him more like the "nation's top general," still having to go back to Congress for such daily military matters as permission to enter into a prisoner exchange.
Certainly, no one would think the drafters of the Constitution thought of George Washington that way, when he was called "Commander in Chief" during the American Revolution. Strangely, though, even he didn't think he had the authority to grant a simple furlough.
"I do not conceive myself at liberty to grant his request, without the permission of Congress."
