Posted on 01/18/2020 12:05:58 PM PST by bitt
The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.
To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.
Even if the GAO were correct in its legal conclusion — which it is not — the alleged violation would be neither a crime nor an impeachable offense. It would be a civil violation subject to a civil remedy, as were the numerous violations alleged by the GAO with regard to other presidents.
If Congress and its GAO truly believe that President Trump violated the law, let them go to court and seek the civil remedy provided by the law.
U.S. Government Accountability Office (GAO) has gotten the constitutional law exactly backwards. It said that the "faithful execution of the law" — the Impoundment Control Act—"does not permit the president to substitute his own policy priorities for those congress has enacted into law ." Yes, it does — when it comes to foreign policy. The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president.
To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional.
Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority. Or consider the actual situation that former President Barack
(Excerpt) Read more at gatestoneinstitute.org ...
Dershowitz may be a liberal, but he is a fine lawyer.
I read the piece. That's what prompted my response.
The problem is Dershowitz doesn't address the fundamental Constitutional issue. POTUS has control of foreign affairs and Congress has control of the money. How do you resolve conflicts?
My solution is POTUS has control of policy provided he doesn't need to mess with my representatives' allocation of my tax money.
Yes, semi, he does. Dershowitz states specifically that:
- “The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president. . .
“The Constitution allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty). It does not permit Congress to substitute its foreign policy preferences for those of the president. “To the extent that the statute at issue constrains the power of the president to conduct foreign policy, it is unconstitutional. “Consider the following hypothetical situation: Congress allocates funds to Cuba (or Iran or Venezuela). The president says that is inconsistent with his foreign policy and refuses to release the funds. Surely the president would be within his constitutional authority. . .
“To be sure, the statute requires notification to Congress, but if such notification significantly delays the president from implementing his foreign policy at a time of his choice, that too would raise serious constitutional issues.”
Congress cannot use it’s ability to spend to create foreign policy by requiring the spending of funds in a foreign country on any specific schedule which forces the President’s hand when it is HIS policy that would suffer. He can change foreign policy as he sees fit to suit the needs of the moment. Foreign Policy is constitutionally the President’s prerogative, not Congress’, regardless of what statute they may have passed. A statute cannot change the Constitution, or abrogate the President’s powers, no matter how much you wish it could.
Even notifying Congress of a hold or even a cancellation of the spending implies requesting an unconstitutional Congressional permission and waiting for Congress’ OK to do what he already has the Constitutional power to do. That makes the requirement to do the notification itself unconstitutional. Either of these makes the President a mere servant of Congress in Foreign Policy, instead of an independent, co-equal branch, which would be Constitutionally impermissible. Use logic instead of emotion, Mojo.
Telling the President he MUST send money to a foreign country impacts Foreign Policy is Congress dictating to the President what he MUST do. Unconstitutional on its very face. Quod Erat Demonstrandum.
Semimojo hasn’t had any creds on this for some time. He appears to be a shill for Dem talking points. He has been repeating anything the impeachment crowd comes up with as if it were Gospel truth.
Despite arguing that the Constitution gives the President has "the sole authority over foreign policy", Dershowitz' article doesn't actually cite a specific constitutional provision in support of that argument. Isn't that kind of odd? It seems like he's making almost an "emanations and penumbras" argument -- that because the Constitution gives the President certain specific powers that relate to foreign policy, the President actually has a much broader "foreign policy" power. And that's just made up, and constitutionally bogus.
By Dershowitz' logic of the President having "sole authority over foreign policy", and to include foreign aid under that (even though the Constitution is silent on that), the President should have the power to give aid even if Congress doesn't appropriate it. And how would us conservatives feel if the President started handing out U.S. Treasury money to foreign governments based on nothing more than the asserted right to "make foreign policy?=, without a vote by Congress?"
The impeachment is stupid because the Ukrainians themselves were never actually pressured, and the money was sent without any conditions attached. At most, it looks like Trump may have considered trying to withhold the funds to pressure Ukraine, but decided against it and sent them anyway. That's not impeachable in any rational sense.
But that doesn't mean this particular argument being made by Dershowitz is correct.
They had to go to a footnote to a lengthy gov’t form which referenced a ponderous law to find a flyspeck.
That doesn't make this ridiculous impeachment any less bogus. But this particular argument being advanced by Dershowitz not only lacks support in the Constitution, but wouldn't even get GOP support in the Senate.
The President signed the act requiring this spending into law.
Now he doesn't want to faithfully enact that law.
That's not constitutional.
It certainly isn't nearly at the level of something like DACA, or the prisoner exchange for Bergdahl, both of which were committed by Obama and actually supported by the very people currently using hyper-technical and rigid readings of the law to justify impeaching Trump.
It's a joke.
Actually the Constitution does state it in a direct way the Framers clearly understood, but we think today is a somewhat round-about way.
There is no specific Article on Foreign Affairs, but it’s there in several sentences and several phrases in two articles the Framers included that they fully understood the power they were bestowing on the President by including. They were not wordy, but quite succinct.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. — United States Constitution, Article II, Section 2, ¶2. . . he shall receive Ambassadors and other public Ministers. . . — United States Constitution, Article II, Section 3 (in part).
The President names Ambassadors with the advise and consent of the Senate, but they are HIS representatives, and he also receives all Ambassadors from foreign countries, and only the president can negotiate to make treaties, which means to have discussions and agreements with foreign nations.
This was well understood at the time to mean that these Ambassadors represent the LEADER of the Country and policies a single man sets, not a committee, and discussions with foreign countries would go through a single person with plenary power to speak for the Nation, although in the case of a Treaty, a ratification vote would be required. In other nations, especially before the United States came along with a new form of government, that meant the king and his prime minister. England had a Prime Minister and parliament, but the King signed all treaties.
In the rest of the world, it was still kings who had sovereignty, and plenary power. They needed to know WHO in the new US of A they were talking to in their understanding of how governments worked that had authority to speak for the new nation. Who, exactly had the authority to bind this new nation to an international agreement that would be honored among nations.
In the US Constitution, no other person was granted this plenary power. The President could delegate a part of his power as plenipotentiary power to an Ambassador, to speak for him and the nation, but it would be the President who would make the treaty. This was heavily discussed in the Federalist Papers, specifically Federalist #75.
In the role of Chief Executive, the President is wielding the sovereignty of the several States, negotiating with all other foreign nations, which is why it is always the Senate who must agree by two-thirds majority to Treaties with foreign nations.
You’ve obviously never taken a course in Constitutional Law. I have. Might I suggest the free online course on the Constitution from Hillsdale College? Perhaps then you’d understand where that sole power for Foreign Affairs assigned to the President is in the Constitution, and why it must be.
No one here is arguing the President has the sole power to “give aid” as that is not the case at all. Congress must be involved in granting aid. But the President does indeed have the power to cancel aid at any time in response to changing conditions. If Congress has voted a pool of money from which foreign aid can be doled out, then yes, the President can dip into it and dole it out to nations at will. If they have not, then he cannot.
The Constitution was not ever created in anticipation of the United States becoming an international sugar daddy for every needy foreign basket case nation, much less funding foreign wars. That is very much a creation of progressive Democrats and RINOs.
I just read there’s another reason it was stupid as well. The “war” in Ukraine has been on a cease fire status since March, negotiated by the previous Ukrainian president, which is one of the reasons why he lost the election. He lost because his capitulation allowed the Russians to keep the territory they’d already captured to attain the cease fire. There was not much pressure to get more weapons money because they weren’t shooting!
Dershowitz’s argument is spot on, and absolutely correct. Take some time and learn something before you claim a world renowned Constitutional scholar and Harvard Law professor-Emeritus in Constitutional Law is WRONG about something you are demonstrating you obviously haven’t studied is in error.
Yes, it is and if you cannot understand why, then you are dense. The President asked for this bill, and included the provisions for corruption clearances in it. When it came time for disbursements, conditions had changed in that there was now a new government in place who had run on an anti-corruption platform, yet HAD NOT EVEN STARTED IMPLEMENTING THAT PLATFORM 3 ½ MONTHS LATER. That did not meet President Trump’s criteria for corruption reform before the money could be disbursed, which HE requested be placed in the bill. What do you fail to grasp about that? I don’t give a TINKER’S DAMN that a bureaucrat in the military thought that procurements in Ukraine’s military were somewhat better than they had been, IT IS NOT THEIR DAMN DECISION TO MAKE!
If this was WWII, is it some officer in the Army Air Corp who says the Atomic Bomb is ready to drop, we’ve certified it, so let’s go ahead and drop it on Japan, or is it Harry Truman’s decision? Or does he wait for Congress to debate it?
“Furthermore, there is no historical evidence supporting the notion that Congress can use the faithful-execution duty as a means by which it may strip away any presidential prerogative, let alone the executive's essential task of executing the laws. Such a reading would make the Constitution's Executive Vesting Clause surplusage and would undermine the Constitution's separation of powers.” — Heritage Foundation commentary on the Constitution’s “Take Care Clause”
Let’s use some logic. Try following the logic chain. The following are facts:
How then can this STATUTE, a subordinate law, in any way have primacy over the Constitution of the United States? It cannot, semimojo, not by any stretch of the imagination, can it be more puissant than the Constitution.
If the President is Constitutionally charged such that “he shall take Care that the Laws be faithfully executed” then it is the President’s DUTY to make sure that the PRIMARY LAW, the Constitution be obey BEFORE any mere statute. Ergo, it is the President’s DUTY to ignore this SPENDING LAW THAT WOULD HAVE HIM CURTAIL THE PRESIDENTIAL FOREIGN POLICY PREROGATIVE IN FAVOR OF CONGRESS’ POLICY! He would be remiss in his duty to kowtow to a mere statute abrogating his oath of office if he were to bend to Congress’ unconstitutional law.
I know you will ignore the irrefutable logic, because you are illogical.
See your point.
Still, the Presidency was based upon one person: George Washington.
Seems strange today, but his repute was universal.
My not so humble opinion:
When this while Ukraine money “withholding” accusation first started buzzing my initial reaction was how stupid of a premise can this be?
The POTUS —. In his capacity as Commander in Chief and Head Of State has an OBLIGATION to either slow roll or fast track funding to ANY foreign nation based on POLITICAL objectives that he or she sees fit. Without the power to do this the POTUS is merely a puppet figure —- The argument can be made that withholding funds permanently can force congress to make a case before the Supreme Court to compel the President to Authorize the transfer or funds against his/her will after the DEADLINE for such funds transfer is well past AND the President has formally refused to comply with a VETO proof majority in both the congress AND the senate as well as a MAJORITY opinion of the US Supreme court concurrence with the House and Senate —- then and only then can they even THINK about impeachment—. But it would still NOT be a high crime or misdemeanor in my opinion but it would be an interesting case at least.
The GAO is way off base on this one and I believe this will prove to be true in the very near future.
Re: “At this point, the media runs and directs the Democrat party...”
Re: “My wife has contended that for years.”
I agree with all of you and have said so many times at Free Republic.
Most people claim the MSM is the propaganda wing of the Democrat Party.
Completely wrong!
The Democrat Party is the political wing of the MSM.
Dodaro’s appointment is for 15 years.
Dodaro is literally a caricature of a bureaucratic “lifer.”
He has worked for GAO for 47 years.
It was literally his first job out of college.
Ukraine and three other countries had their military money held up because of corruption issues.
Ukraine's money was held up about five weeks longer than the other three countries.
I think Trump can easily defend himself with the Joe Biden videotape and the $50,000 a month payments to the completely unqualified Hunter Biden.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.