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To: Bonaparte
A couple of points. The President is explicitly granted the authority of "Commander-in-Chief" of the military under the Constitution. No President has ever recognized the constitutionality of the War Powers Resolution.

The Constitution reserves to Congress the right to declare war, but the War Powers Resolution clearly states that the President can act with something called "specific statutory authorization", whatever that means. It certainly doesn't sound like a declaration of war to me, nor did it to Nixon, who vetoed the whole mess - the implication is that Congress has Constitutional powers far beyond the simple declaration of war granted by the Constitution.

Also, in light of INS v Chadha and subsequent cases, it is not at all clear that the War Powers Resolution could survive a challenge in the courts. Perhaps recognizing that fact, Congress has never chosen to exercise the remedies provided by the Resolution, such as ordering the removal of troops engaged in hostilities, and thereby provoking a court challenge.

Finally, if you want to look at expansion of powers, it is facile to do so without looking at the explosion of federal agencies over the last 70 years, all of which have been created at the behest of Congress, and exist as a result of congressional delegation of authority.

In any case, what this particular article is about is the expansion of federal powers, at the behest of Congress, by legislating virtually everything under the auspices of the Commerce Clause. Such an expansion of federal power has largely come at the expense of state power, not that of the Executive.

11 posted on 03/13/2002 9:15:43 PM PST by general_re
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To: general_re
"A couple of points. The President is explicitly granted the authority of "Commander-in-Chief" of the military under the Constitution. No President has ever recognized the constitutionality of the War Powers Resolution."

No one disputes that the President is CIC. However, the "recognition" of the constitutionality of legislation is a function reserved entirely to the courts, not the President. If legislation of any kind is passed into law, over his signature or over his veto, it doesn't matter what he thinks of it -- he is obliged to abide by it or refer it to the court. IOW, he is not supposed to be a law unto himself, he is only empowered to "faithfully execute" the law -- though that fact will not always impress him.

Infrequently, the court will actually do its job and put a stop to presidential excess, for example, when it stopped Truman from seizing the steel mills during Korea. I note that Johnson was very careful to get authorization from Congress for his action in Vietnam. Bush also took great care to obtain Congressional authority for his current war on terrorism. And similarly, his father did so before embarking on his Desert Storm campaign. Aside from the obvious issue of appropriations, it's often, though not always, politically expedient to do so.

The original wording of the war clause gave Congress the exclusive power to "make" war. This, however, was revised to "declare" in subsequent drafts when they realized that the President might have to repell a sudden attack or urgently pre-empt foreign encroachment before Congress could convene and decide. They never intended that one individual, acting on his own, should have the power to commit the country to full-scale war. They had seen this sort of thing done in Europe between rival royal families and would have none of it. It's all in Madison's 1787 notes (in fact, he's the one who proposed the change in wording.) By imposing a time limitation, the War Powers Resolution merely re-elaborates this principle, that the executive must be allowed some degree of flexibility but the ultimate decision to go to war rests with Congress.

"... that the President can act with something called 'specific statutory authorization,' whatever that means."

It means the same thing it did in 1798 and 1799, when Congress, unwilling to declare war on France, nonetheless gave Adams the go-ahead to engage in continuing hostilities with them. They enacted at least a dozen statutes to this end. The War Powers Resolution, if challenged, will do just fine -- if Congress has the intestinal fortitude to defend it, that is.

"...the explosion of federal agencies over the last 70 years, all of which have been created at the behest of Congress..."

Certainly with their collusion, and at times, their meek acquiescence. No question about it -- Congress has willingly abdicated much of its own power.

And I agree with you absolutely that states' rights have taken a terrific beating, and the commerce clause is grossly misconstued and misapplied.

12 posted on 03/13/2002 10:38:46 PM PST by Bonaparte
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