can bite me

Just be aware of the costs.

Great post, LB. I don't even know that originalists would have that much to quarrel with you about (although I may be proven wrong in 2.5 comments), because I think it's consistent with originalism to rely on the original meaning of "Commander-in-Chief" with respect to Washington (as J. Scalia ever-so-scoldingly reminded us when I heard him speak, he's all about original meaning, not original intent, whatever the fuck that means). So, if the original meaning of Washington's position would not have entailed overriding the will of the Continental Congress, similarly, Bush can not override the will of today's five-hundred-headed monster.

Ultimately, you're right. When Congress has an enumerated power to cut off funding for the war and otherwise engage in its direction, we're supposed to read into the words "commander-in-chief" that they can't do so when it contravenes the will of the president? Talk about twisted interpretations.

But where Congress can get itself pointed in one direction sufficiently to establish a military policy, there is no basis for the belief that the executive may countermand Congress's orders as enacted into law.

my point is that the text of the Constitution does not compel us to grant Bush the power he claims.

To what claims of the President, exactly, are you referring?

And if you are going to be an originalist or a textualist, be one--what does Command in Chief mean? Is it your claim that it can mean whatever you want it to mean--or nothing at all--because it is not a defined term? If so, you, ma'am, are not a textualist or an originalist.

But if you think Commander in Chief means something (and you should start with what it meant then), what does it mean, and how, if at all, is this squared with Congress's powers? If you do this analysis, your apparent argument that the President has no powers that cannot be trumped by Congress seems suspect.

It's things like this

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

As I read the Constitution, it sets up two very distinct kinds of military bodies, militias and armies. Militias were intended to be small-scale, local operations: armed citizens, not entirely professionalized, perhaps. On the other hand, the framers were clearly very nervous about armies. An army just standing around was going to get used and maintaining such an army was going to distort the character of a nation.

So how the hell do all the Constitutional constraints on army-raising get waived away?

(I am, obviously, not a lawyer.)

"An army just standing around was going to get used and maintaining such an army was going to distort the character of a nation."

And in fact it has just done that. Has anyone ever noticed that the underlying assumption of our national discourse is that we face a constant threat of not being militaristic enough? How many people have you heard worrying aloud that the real danger of the Iraq clusterfuck is that it might make us too hesitant to use military force?

I think if you took a poll around the world, most people would agree that the US not using military force is a danger they're willing to face.

4: My understanding is that moneys for the support of the military get appropriated every two years or less -- that's it.

3: My understanding is that Commander in Chief names the job that Washington was given by the Continental Congress -- the chief military leader of a country's (or incipient country's) forces, subject in matters of policy to the body that funds those forces.

you, ma'am, are not a textualist or an originalist.

No shit, Sherlock.

M.Leblanc:
(as J. Scalia ever-so-scoldingly reminded us when I heard him speak, he's all about original meaning, not original intent, whatever the fuck that means).

Original meaning is public, and can reasonably be thought to have been democratically ratified (to the extent that the procedures of 1787-9 count as 'democratic'). Original *intent* is focused on the people in the meeting hall at Philadelphia, whose own understandings of the Constitution they were writing may help illuminate public meaning but are not themselves important. An original intent person can point to Hamilton's "we really ought to have a monarchy" speech to the Convention as evidence for a really, really expansive version of executive power-- or to Madison's Remonstrance as evidence of what the establishment clause meant. An original meaning person cannot, since that's not what the words on paper plausibly meant to public readers at the time. It's both a huge substantive difference and a huge methodological difference-- a shift from the authors to the ratifying public, from the Notes on the Convention as the central resource to 1780s dictionaries and law books as the central resource.

you, ma'am, are not a textualist or an originalist.

no shit, Sherlock.

OK, now that we are in agreement that the strawman argument you made was not a textualist or an orignalist one.

I think your attempted definition of Commander in Chief does not hold up well, to the extent it says anything. I think the better reading is that Congress provides the means and the authority to go to war, and the Commander in Chief makes the warfighting decisions. In other words, in my view Congress could cut funds for the military or repeal the AUMF, but it could not tell the President how to fight. Indeed, I see nothing in the text of the Constitution you quoted or in how it has been interpreted implying that Congress could usurp the Commander in Chief power as you appear to propose.

Hrm. So, the 'original meaning' argument about the nature of the job Washington had as Commander in Chief during the Revolutionary War, and what that says about the meaning of the term 'Commander in Chief' in the Constitution apparently went right by you.

2 & 8: but, m. leblanc, Scalia thinks that how the ratifying public would have expected courts to apply terms in the Constitution is "original meaning" and binding. According to Scalia, since they didn't think the 14th amendment would protect gay rights, it doesn't, and to say it does defies the "original meaning" of the text.

I think this is very very silly--and to me it always sounded like a guess at "original intent" so I didn't understand what on earth he meant about being bound only by "original meaning". There is nothing about the def'n of the words "equal," "protection," "laws," etc. that has changed since the 1870s. What has changed is how we apply those definitions to the facts--because we have new facts, and because we are less blinded by certain prejudices.

Scalia does not always go with the original expected application, because it would force him to say that Brown v. Board of Ed was probably wrongly decided and Loving v. Virginia definitely was. He doesn't really address the distinction, there's just some handwaving about "Terms of art", wherein if he likes the original expected application it's a "term of art" that's incorporated into the meaning of the text, and if he doesn't, it's not.

6095:11:para1: there are probably various more or less clever ways to get around the fact that gay rights wouldn't even have occurred to people at the time of the 14th amendment's ratification. After all, there are tons of specific instances of F, where F is something that would have been endorsed by contemporaries of the 14th amendment, that they would never have anticipated, I'm sure. They might not have thought it would protect gay rights, but maybe they thought it would protect something of which (we think, but we've got to be responsible for some structuring of what comes before us) gay rights are an instance.

(I bet few of them thought it had anything to do with corporations, too.)

yes, there are. It's Scalia's argument not mine--I think it's legally incorrect and antithetical to the whole point of having a Constitution.

9: If I understand this properly, the Constitution gives the President the power to direct the war, and the Congress the power to declare it and fund it. What I think is the interesting question is whose power wins if the President's strategy for the war requires additional funding. I can't see an interpretation that would compel Congress to continue to fund a war once they had declared it.

I can't see an interpretation that would compel Congress to continue to fund a war once they had declared it.

Seems right to me, as a general matter. Who is arguing otherwise?

Isn't that is what's up for discussion?

15: Bush. At least, he's coming close.

Isn't that is what's up for discussion?

Which that? That Congress cannot cut funding for the war? LizardBreath ignored my request to explain what insupportable positions had been taken by President Bush. If he has taken the position that Congress has no Constitutional power to cut Defense spending, I would disagree with him. Do you have a link to a statement from the White House to that effect?

15, 16: I'm assuming that Bush's latest plan costs money. If it doesn't, then it's just a matter of strategy; Congress doesn't have to authorize moving troops from Anbar to Baghdad. But if he has to go to Congress to get the money for more troops because Congress holds the pursestrings, then it seems correct that say that because Congress funds the surge/escalation, Congress has the power to reject Bush's plan.

Right. Or that Congress may set conditions on the funding they give the war -- funding doesn't have to be unrestricted, it can be conditional on adopting a given policy.

18: If I understand Levy's argument, he seems to be saying that Congress might not be able to block the newest plan because doing so would undermine the powers of Commander-in-Chief.

There's to the effect that the appropriate thing for Congress to do is to fund the war. 'Appropriate' may not be co-extensive with 'Constitutional', though.

Woops. Runaway linkage gurgle.

And Ideal? This would be the sort of thing I'm thinking about.

In an interview with CBS' "60 Minutes," President said Congress cannot stop his plan to boost US troop levels in Iraq. The Financial Times says the president "struck a defiant note" during the interview, and said Congress "could try to stop me from doing it. But I made my decision, and we're going forward."

funding doesn't have to be unrestricted, it can be conditional on adopting a given policy.

That is your assertion. It seems to be at odds with the Constitutional grant of the Commander in Chief power to the President. By your view, Congress can say "here's a budget, but you only get the money if you follow this battle plan we have annexed to the budget." I believe that this is at odds with how the constitution has been interpreted or with its text.

re: 23.

OK. Please show me where Congress has cut off funding for this. Indeed, according to the article you linked, the money is already in place to begin moving additional troops to Iraq." You claim that the President intends to violate the Constitution, but you seem to be a bit short on both the facts and the law.

Who said they'd cut off funding yet? I was pointing out that he appears to be claiming the right to go ahead with whatever he wants to do regardless whether Congress tries to stop him, which presumably they'd have to do through the mechanism of cutting off funding.

Are you arguing that we shouldn't be talking about things that might happen in the future because we don't know if they're going to happen yet? What are you, Casey Stengel?

And on the 'Commander in Chief' power, Washington was certainly subject to the direction of the Continental Congress, despite being styled 'Commander in Chief'. What's the originalist basis for saying that the same job title accrued new powers between the Revolution and the Constitution?

I was pointing out that he appears to be claiming the right to go ahead with whatever he wants to do regardless whether Congress tries to stop him, which presumably they'd have to do through the mechanism of cutting off funding.

Respectfully, if the basis for your argument that the President has a plan to ignore Congress's power to fund the military and will continue a war Congress has defunded is the article you linked, you are stretching more than a bit.

In any case, I have no idea what Bush's plans are. The post was about what his Constitutional powers are as they relate to those of Congress -- whether Congress can and may constrain his military policy within the context of a war.

Arguing about the constitution may be fun, but in 200 years haven't there been some actual cases bearing on these issues?

That's a good question, James. Lawyers?

Idealist is more the con law scholar than I am -- I'm mostly shooting my mouth off. But it's not the kind of issue that gets litigated a whole lot (that is, there may be relevant cases, but I'm not thinking of them offhand); situations where Congress is squarely at odds with the executive during a war have been few and far between. Vietnam was eventually defunded by Congress, but that decision wasn't actively resisted.

whether Congress can and may constrain his military policy within the context of a war.

It's kind of a blunt instrument, but they can constrain it through funding restrictions, right? Other than that, I'm not sure what else they can do--the President has quite a lot of discretionary authority about how a war will be fought.

I think that the Constitution provides a very limited power to the President, subject to broad congressional control. Congress can outlaw the use of chemical weapons, cross-bows, or AK-47s. It can direct that no government funds be used in support of any faction in Somalia. It can refuse the promotion (or appointment) of particular officers; it can ask Gen. Petraeus what he plans to do in Iraq (his appointment requires confirmation), get him to make promises, and then it can impeach the Secretary of Defense if he instructs Gen. P. to violate those promises.

While the Congress might not do these things, it clearly, indisputably I'd say, has the power to do them. All that C-in-C stuff we hear from the right is just emanations from penumbras: the real power over the military resides, and has always resided, in the Congress.

How about things like promotions and appointing and dismissing commanders which would bear on how much micromanagement is ok?

33 -- I've never understood why so many people seem to think that Congress' power is limited to funding (although this alone is sufficient for nearly any purpose). "To make Rules for the Government and Regulation of the land and naval Forces" is a big deal.

Emily Bazelon outlined four ways Congress could stop the war last week in Slate.

I've never understood why so many people seem to think that Congress' power is limited to funding

Easiest one to remember. John Yoo called this in class one day "the bribery clause" (albeit in reference to getting the states to do things Congress couldn't order them to do, like raise the drinking age).

"To make Rules for the Government and Regulation of the land and naval Forces" is a big deal.

If it is your position that this means to make war plans or other military decisions, I think neither the text nor practice support your view.

why so many people seem to think that Congress' power is limited to funding

I guess because that's the only instrument they seem to really use. But you're right, of course.

The classic argument is that:

-- the core of the Commander in Chief Power is "troop movements on the battlefield",

--"we are revoking the AUMF as of this date, get them out of there" would require us to remove troops from Iraq

--therefore it interferes with "troop movements on the battlefield" and is unconstitutional.

--I don't buy this. If the President has plenary authority over troop movements on the battlefield, wouldn't that equally extent to sending the troops into Iran or Canada without any Congressional authorization? And isn't that a clear encroachment on the power to declare war?

--I think the power to declare a war, or authorize military force short of that, implies a power to end it by a certain date.

--I know that Yoo et. al argue that the declare war power is limited to Congress saying "hear ye, hear ye, the state of war now exists," and the President is perfectly free to send troops into Iran, Canada, or probably my living room if he wants to. I don't buy this. Ramsey's more limited originalist argument, that only Congress can start an offensive war but the President can repel an attack, I might buy.

--If you think the power to declare war really means anything then I don't think that "troop movements and military decisions" ends the conversation & means the President gets to do what he wants.

39 -- I'm not sure we disagree. I think Congress' power to influence 'war plans and other military decisions' comes from several sources, and that this is more of a minor one. This is really the power to create the UCMJ, and there are a number of things that Congress could choose to make illegal that might impinge on war plans. I think, for example, that Congress could make it illegal to participate in hostilities against a country against which war has not been declared. It can make unconsented overflight of neutral countires a crime. Again, I'm not saying it should or will do these things, just that it has the power to do them.

40 -- I think the appointments power is actually used more than the budget power, and Gen. Petraeous' hearing should be interesting: but your point is well taken. I mention it, though, because at common law, Parliament really did have only this power, while the Constitution explicitly provides for greater powers in the Congress.

41 -- I find myself continually annoyed by Prof. Yoo. His emphasis on what is and what is not a 'political question' seems to lead him down the wrong path sometimes. Just because something is immune from judicial review, that doesn't mean it's constitutionally OK: diplomats cannot be charged (or sued) if they drive drunk and run down Americans in America. We would nonetheless refrain from saying that international law endorsed negligent homicide.

I just don't get that this is even a question.

Had the Congress directed that we abandon "Europe First" in favor of focusing on the war against Japan in WW2, I can't imagine that FDR would've been able to tell the public, "to hell with Congress, I'm fighting the war the way *I* want."

From JL's post: If we accept that Congress' authorization of force against Iraq was the constitutional equivalent of a declaration of war...then I think it pretty well ended Congress' involvement in military decisions.

I can't buy that. That would mean the president would be authorized to employ means that are clearly outside of the congressional mandate like, say, tactical nuclear weapons.

FWIW, I really did want to hear what Sunstein and Levinson had to say, and wasn't putting forward a confident argument. If Cass is confident that selective defunding would be constitutional I trust his judgment-- but I still worry about all the complications he mentions, and wonder what the line looks like between selectively defunding the surge and selectively defunding troop movements in one direction or a certain number of yards (Sunstein's examples). His 'nice question' still makes me hesitate a bit over his proferred general rule. But, as I said, he's hardly a knee-jerk opponent of executive power, and he knows this stuff better than I do, so I'll presume he's right.

I think what makes it a nice question is whether it's a good idea to micromanage military policy, rather than whether it's constitutionally permissible. I think it's clear that in a war that Congress generally supports, Sunstein's example of selectively defunding troop movements over a certain number of yards is ill advised -- Congress is just terribly unlikely to be making useful decisions on a tactical level.

But it seems clear to me that Congress's enumerated powers -- the power to fund and defund, the power to make rules governing the military -- give it the constitutional capacity to control the military at whatever level of detail is practical. I see no basis in the text of the Constitution for claiming that the President's powers as Commander in Chief include any power to disobey legislative enactments made under Congress's war powers. As a matter of practice and policy, the President is going to, as Commander in Chief, control military policy because it's not the sort of thing a legislature can do in detail. But that doesn't mean that his powers can override those of Congress.

(And thanks for showing up here -- I do appreciate people commenting on my posts.)

re: 47

What you have said, in effect, is that you can conceive of a reading of the funding and rulemaking powers that could be stretched into being the same sorts of powers wielded by the Commander-in-Chief by reconceiving warfighting as setting military policy. But this leads you to the untenable argument that this conceivable power trumps the clear and obvious power of the Commander-in-Chief to direct the military. It is untenable because you cannot explain why this is so. Why--even if your creative reading of the text were agreed upon--does Congress's power trump the executive's when the most you have argued is that they each have the power to direct the miliatry's operations?.

Article II, Section 3: "He shall take care that the Laws be faithfully executed." Congress makes laws, the exective carries them out.

Congress makes laws, the exective carries them out.

So it is your position that if Congress passed a law saying that all of the powers currently exercised by the Exceutive branch now would be wielded by the Speaker of the House, that law would be constitutional and the President would have to obey it? I respectfully disagree with your analysis. I believe the Supreme Court does, too.

But of course that's not what I'm saying at all. What I'm saying is that Congress's enumerated powers under which it makes laws completely encompass the military -- not only does it have the power to declare war, it has the power to make rules that govern the military, and it has the power of the purse. Any law that it makes under these enumerated powers is a law, and the executive is bound to carry it out -- there is no reserved 'war fighting' area where Congress's lawmaking authority under those powers does not reach, and there is thus no reserved 'war fighting' area in which the executive is not bound to obey the law.

If you believe there is, where in the Constitution do you find it? Implicit in the words 'Commander in Chief'? or someplace else?

I note, on looking back over 49 and 50, that neither one of us can reliably spell 'executive'. America's law schools are in sorry shape, spelling-wise.

But of course that's not what I'm saying at all.

OK, so what exactly are you saying in terms of the conflict I note in 48, both in terms of which branch trumps if--as I understand it--you are arguing that both branches have the power to direct the military's warfighting, the President as Commander-in-Chief and Congress under the clauses you cite and why it is the Congress trumps. 51 reasserts your assertion in 47 but does not explaint why it could or should be so.

You put a lot of weight on Congress's law making powers. What if Congress passed a law saying that the Supreme Court's interpretation of the Constitution in a particular case was wrong and that a law which had been declared unconstitutional must nonetheless be enforced? What if Congress passed a law saying that laws no longer had to be signed by the President? How far are you willing to go with this notion that Congress's powers trump? Again, how do you square your theory with all of the Supreme Court caselaw on separation of powers?

LAWYERFIGHT!

Congress does not have the enumerated power to override the judiciary's interpretation of the Constitution. Congress does not have the enumerated power to change the means by which bills become laws. Congress does have the enumerated power to fund or refrain from funding the military, and to set rules governing the military.

The distinction does not appear to me to be a subtle one.

(Note: Repeated non-specific appeals to "caselaw" are less persuasive than more detailed arguments might be.)

Repeated non-specific appeals to "caselaw" are less persuasive than more detailed arguments might be

Sorry, I thought they taught Con Law at NYU.

Speaking of detailed arguments, 55 does not address most of mine. Since I have lots of work to do before I can call it a night, I'll drop it. Feel free to lob in the last word.

IANAL, but when has that ever stopped me:

I see two distinct issues here. First, the Constitutional question of who has what power. Second, how the practical effects of the enumerated Congressional powers influence the practical powers of the executive branch.

Idealist seems to be answering the first, and LB seems to be answering the second.

I don't necessarily totally agreee with LB but I have no earthly clue what the counterargument even is, whereas I think she's addressed yours. Congress has "the legislative powers herein granted"; your various examples are not among the legislative powers granted to Congress and directly contradict constitutional text; whereas the war powers LB cites are. It's a pretty simple distinction.

If you want to pick something more analagous--maybe jurisdiction stripping for the Supreme Court by subject matter would work: if a law falls under Congress's enumerated powers, can it use its lawmaking power to effectively nullify another branch's powers?

But your examples are ridiculously easy to counter, and then you're just left arguing about the "clear and obvious power to direct the military"--like "troop movements" that proves too much. There are clearly things that the President can't lawfully command the military to do, just as there are clearly troop movements that he cannot lawfully command.

And seriously--saying that "caselaw" supports your argument and getting snippy when asked for a single specific example? Maybe I should try that technique in motions?

I'm guessing you're taking the line on Youngstown that we heard from Alito during his nomination--if so I think you're wrong--but that's a wild guess; I don't know whether you're even talking about Youngstown or what your argument is.

Congress does not have the enumerated power to override the judiciary's interpretation of the Constitution.

The judiciary does not have the enumerated power to override Congress' interpretation of the Constitution. Now that that's out of the way.

Congress does not have the enumerated power to change the means by which bills become laws.

More specificially, they are required by the Constitution to pass laws in a certain way.

Congress does have the enumerated power to fund or refrain from funding the military, and to set rules governing the military.

Aha! Absolutely. There's almost nothing in your post I disagree with, except

'Commander in Chief' wasn't a new title created by the Constitution to signify an unprecedented level of military authority; it was a conventional term for the general in charge of a nation's armed forces. Washington was the Commander in Chief of the Continental Army during the Revolutionary War; it would be absurd to suggest that that title, before it was incorporated in the Constitution, gave him the legal authority to disregard the Continental Congress's wishes with regard to the conduct of the war. And nothing in the text of the Constitution states in any fashion, implicit or explicit, that the term 'Commander in Chief' has been redefined from the office Washington held to include a power to override Congress on matters of military policy.

The title was created for George Washington, but as a practical matter it makes a given President (once he has assumed office by taking the oath) the chief military officer of the United States. When he (or maybe she, soon enough) takes the oath, he becomes a military officer for the purposes of issuing military orders. Thus not only can George Bush issue orders to his subordinates (the JCS) he can personally travel to Iraq and issue orders DIRECTLY to any member of the military he comes into contact with, and if they do not obey those order they would be liable for insubordination just as if they had deliberately disobeyed an order from a uniformed officer. Unless it was an illegal order, in which case the uniform would be obligated by his oath NOT to obey that order ('Sargeant, go kill that innocent pregnant civilian!' 'Why, sir?' 'Because she's totally innocent.' 'I can't do that, sir, it's illegal.'). A sorta similar situation exists in England. The King (or currently the Queen) is the head of the military, however, as a practical matter the PM directs military operations. The Queen wields the de jure power and the PM wields the de facto power, except that the potential exists for the Queen to override the PM's orders, and in turn, Parliament can decline to reauthorize the military (an act they perform once a year as a formality).

Congress can authorize (or outlaw) any form of conduct not barred by the Consitution or existing treaty, can fund or defund, create or disband military units, change uniforms, name ships, authorize promotions and just generally do what they want. And they have. They have disbanded military units at the end of every war, they disputed with the CinC about sending soldiers into claimed territory (the Spot Resolutions), plan and provide for training (or not provide for training) and so on and so forth, and historically they have done so. The President can't even close a base inside the United States without the ok of Congress. Every military officer knows this. For one instance in particular, Congress outlawed the movement of the army farther than 25 miles into Cambodia and made it stick. Nixon was forced to comply.

Congress cannot prevent the CinC from issuing orders in general ('Corporal, I want you to go out and sing Happy Birthday to that rooster every day at 8 pm from now until hell freezes over, and while you are singing the song, you should do the Macarena.'), but Congress can outlaw any action ('No member of the Armed Forces of the United States shall sing Happy Birthday to any form of bird, fowl or waterfowl at any time.') it wants.

As for the originalist argument, Congress was intended to be the primary power center in the government, which is why they have the power to declare war. The power of Congress and the CinC overlap almost exactly but Congress is still the 800 pound gorilla.

As a practical matter, the tradition has been that there was a Department of War (the Army) and a Department of the Navy (which included the Marines). Congress would basically disband the Army outside of wartime and the President controlled the Marines and the the Navy and could use them as needed. Which is why Wilson could send Marines into Veracruz (and get away with it) but could not start a general war or occupy Mexico.

Sven: That would mean the president would be authorized to employ means that are clearly outside of the congressional mandate like, say, tactical nuclear weapons.

He can do that. He controls the weapons and the military. He can order the use of such weapons starting right this minute. Congress could outlaw the use of such weapons, however. And as soon as it became law, out they go.

Bush has been trying to claim wartime powers in the absence of a declaration of war, AND trying to claim the sphere of control of a near-absolute monarch and I don't see any place in the history of the United States, specifically including FDR where that has been allowed (or for the far greater part, even attempted).

m, go LB

m, go LB

Please go back to using the brackets. They were certainly annoying, but not half so annoying as starting every parting sentence with "m".

You guys bitch and bitch about the brackets, and then when they're gone, you complain. That'll teach you.

I don't think I've ever bitched about the brackets before. They were a tolerable level of annoying.

61: It's just like Saddam, really.

I kinda liked the brackets. The new thing confuses me, though.

I am a bit confused about where the rubber hits the road on the LB-Idealist disagreement, which I take it is over the claim that there is no reserved 'war fighting' area where Congress's lawmaking authority under those powers does not reach.

Is LB's claim that no law Congress could pass with respect to war-fighting would amount to a breach of the separation of powers? Thus, Congress in WWII passes a law to the effect that the US will not attack France in Normandy via amphibious invasion, but may do so at Calais, that would be OK under separation of powers? Or is the limit case more like the Sunstein hypothetical where Congress ties approval of appropriations to one strategic plan rather than another? Is LB's claim that this is OK under separation of powers?

Are one of those two the claim, or is it something else? If one of these two are the claim, I seem to have missed the main argument, or at least as they say, find it "under-described." I may be wrong, but I read the interplay of 7 and 8 above as acknowledgement that the formalist/textualist/orginialist argument floated in the post wasn't meant to be anything like conclusive. Is the argument that:

1) A true original meaning argument supports this version of the separation of powers
2) Precedent supports this version of the separation of powers
3) Some other constitutional theory supports this version of the separation of powers

Or is it something else entirely?

I thought LB was saying that 4) a reasonable interpretation does not support the idea that the CiC's desire to wage/escalate the war can't be blocked. And that Idealist was basically refusing to entertain that argument.

I think it would be useful if Idealist gave an example of a hypothetical law (passed, presented, and signed) that he thinks would be void for conflict with the C-in-C clause.

If he wants to cite a case where such a thing happened, that would be great.

65 -- It's taken me a few minutes to think of a scenario, but here's an idea. Suppose it's early 1942, and FDR enters into a secret treaty with Vichy France. It agrees to allow the invasion of Morocco without any resistance at all, and in return, FDR promises that any invasion of France will occur in Picardy, not Normandy. The treaty is ratified by the Senate (in executive session), and thus becomes law of the land. Suppose FDR dies in early 1944, and Henry Wallace decides he wants to invade Normandy. Can he abrogate the treaty unilaterally? I think he has to go to Congress.

Also, I was just looking at the summary of the 2007 DOD authorization bill, which includes some interesting features:

- Directed suspension of current policies of the Air Force and Navy regarding religious
practices pending committee hearings on the issue of public prayer by military chaplains.

- Directed the Secretary of Defense to establish a working group to assess the needs for
transitioning to civilian employment of members of the National Guard and Reserve
returning from deployment to Operation Iraqi Freedom and Operation Enduring
Freedom.

-Authorizing the creation of one additional Assistant Secretary of Defense, bringing the
total number to nine, to facilitate a reorganization of the Office of the Undersecretary of
Defense for Policy. The conferees also directed the Secretary of Defense to submit a
detailed description and explanation of the proposed reorganization, including a response
to a list of concerns enumerated by the conferees.

Here are some basic separation of powers cases, Bowsher v. Synar, which held that Congress could not assign (even by a law signed by the President) the power to carry out the law, which is an Executive power, to an official who was an agent of Congress rather than the executive, and INS v. Chada, which held that Congress could not assign to itself (again, even through a law which had been signed by the President) the power to overrule deportation decisions made by the Attorney General, a member of the Executive Branch.

More to the point, no one has yet explained why it is that this imagined power of Congress to direct military operations based on powers such as its funding power trumps the Commander in Chief powers.

a reasonable interpretation does not support the idea that the CiC's desire to wage/escalate the war can't be blocked. And that Idealist was basically refusing to entertain that argument.

No. We are all in agreement that Congress can pass a law (which, of course, has to be signed by the Executive or overcome a veto) that can cut funding for the military or set military rule or regulations. LizardBreath is arguing for a radical extension of the current understanding of the law and arguing that Congress could expropriate the President's power as Commender in Chief to direct military operations--attack here, not there, use one set of strategy, operational art or tactics rather than another, based on the clauses she cites, which have to do with the funding and basic organization and manning of the military. Moreover, she argues that such power necessarily trumps the Commander in Chief's power, because Congress makes the law. Both the cases I cited above (and there are more, these are just the case book classics that probably every law student is taught) and centuries of practice say that she is wrong.

Late in the game: but this strikes me as a case when creative constitutional thinking is needed. In the Constituion you have a lot of mechanisms to prevent direct democracy / mob rule, and a lot of mechanisms to prevent one man rule, but the latter group of mechanisms has been increasingly disabled and bypassed.

(BTW, people talk about Bush and the Republicans as though they had a mob behind them, and some of their supporters are indeed hysterical thugs, but they've actually squeaked out the elections only with the help of massive, expensive propaganda campaigns and voter repression. Once they get their 52%, they claim a mandate from The People, but it isn't as strong as that.)

As far as I can tell, the unitary executive is anti-constitutional -- a prime example of rewriting the Constitution. So maybe we shouldn't be excessively narrow about how we interpret the counterbalancing Congressional role, granted that the executive has already overcome most of the safeguards on its own conduct.

I'm not really a Constitutionalist at all. It would seem, though, at this point, that if the Constitution is going to retain its restraining-the-executive function at all, maybe there will also have to be innovations (which we should encourage) on the Congressional side. Or at least we should be giving the widest interpretation to Congressional powers, rather than the most scrupulous.

The founding fathers tried to prepare for every eventuality, and the constitutional myth is that they succeeded, but that's really impossible to do. So a creative response seems required.

This kind of questions is one on which Libertarians have something valuable to say. They've been talking about executive usurpation for decades.

Ideal: The cases you cite stand (roughly) for the proposition that Congress may not retain for itself the power to exercise discretion in carrying out the laws through a process other than legislation. Congress can't designate an actor within the legislature with the discretionary power to execute laws. That's separation of powers -- the legislature legislates, the executive executes.

Wherever Congress has the power to legislate, however -- to literally make law, rather than carrying it out -- the executive is bound to carry it out; executive discretion in areas where Congress has made law is the discretion to find means to execute the laws as passed by Congress. Where Congress can and has properly legislated, the executive does not have the discretion to countermand or ignore Congress's legislative decisions.

To argue that the President has a power to ignore or countermand laws passed by Congress, you need to argue that there's an area where the Constitution states that Congress may not legislate. Given the enumerated powers of Congress to control the military, I don't believe that there is a reasonable argument that warfighting is such an area.

(Personal note: I got snippy with the 'more specific arguments' line, and I apologize. But can we take the hostility level down a notch generally? This is a disagreement about con law, not about whether either of us tortures kittens -- between friends, there's no reason for it to get ugly.)

My decidedly non-lawyerly take:

1) Commander in Chief sounds like a military designation to me. The President ranks above the Generals and can give them orders. But it's not at all clear to me that the guy in charge of the army gets to decide what countries the army attacks. Since the Constitution does explicly say that Congress gets to decide this, it appears to me that the CiC does not, and that if he were to use the army in a way that his superiors in Congress have ordered him not to, he is guilty of insubordination, just as if the admiral of the Navy decided to invade Iceland without getting permission first.

2) Congress has the power to remove the Commander in Chief from office. This would seem to give Congress effective veto power over any military decision he makes, if they disagree. The Commander in Chief doesn't have the power to do anything to change Congress if he disapproves of their war/funding decisions. So it seems pretty clear that structurally, Congress outranks the President in terms of military policy.

This opinion is probably more obviously wrong than those expressed above, and so it may be more fun to tee off on.

"Can I invade Iceland, Mom? Pretty please? -- I promise to finish my chores when I'm done invading."

"Mo-ommmm! 'We'll see' always means 'no' and I have this new airplane and I wanna play!"

between friends, there's no reason for it to get ugly.)

So now you're calling me ugly . . . !

I'm sorry. I was trying to disagree strongly, not be ugly. Guess I missed the mark (although I hope you at least got that the crack about NYU was just a continuation of our standard cross-town law school rivalry routine rather than a real insult). Anyway, sorry about being overheated.

But you still are wrong.

Consider these hypotheticals:

Congress passes a law over the President's veto saying that LizardBreath will be appointed Ambasador to Cuba (to enjoy the socialist workers paradise you always have dreamed of) and CharleyCarp has to appointed to the Supreme Court (because, well, he's qualified and people like him). Constitutional in the face of the grant of power to the President, not Congress, to make such appointments? I think not, but it is no different that what you propose, which is Congress passing laws which give to them the Commmander-in-Chief power by taking decisions that are the Commander-in-Chief's notwithstanding the plain grant of that power to the President.

Idealist, what do you consider Commander-in-Chief power to encompass? The grant of that power to the President is certainly clear, but what such power entails is not, at least to me.

the plain grant of that power

I'm with Mitch in asking where you get your understanding of what the Commander In Chief power encompasses from? In the Constitution, I see no definition, just the title. Historically, I see that title used to name a position that did not have the sort of fundamental autonomy over military decisions that you claim for it.

Congress passes a law over the President's veto saying that LizardBreath will be appointed Ambasador to Cuba (to enjoy the socialist workers paradise you always have dreamed of) and CharleyCarp has to appointed to the Supreme Court (because, well, he's qualified and people like him). Constitutional in the face of the grant of power to the President, not Congress, to make such appointments

Again, with this, you're talking about Congress legislating in an area where the Constitution does two things: first, it does not explicitly give that power to Congress, and second, it does explicitly give that power to the executive. That's distinct from the area of control over the military, where the Constitution does explicitly give Congress the power to legislate, and does not explicitly give the President the power to override legislation at his discretion. 'Commander in Chief' is a job title, not an explicit grant of power to act in opposition to Congress in that area.

Idealist, what do you consider Commander-in-Chief power to encompass?

The authority to control the war fighting power of the military. To determine strategic military goals, choose what forces will be used to acheive them and how those forces will be employed. The normal incidents of military command.

To be sure, and as I think I acknowledged a few times above, Congress does have powers relating to the military. It can declare war. Inherent in that, I think, is the right to declare an end to a war (there is a debate over the extent to which the Commander-in-Chief powers give the President the right and power to take action without Congressional consent (the most common view being yes, within limits), but I do not see how this would stand up in the face of a declaration, passed over a veto, for example, that the AUMF is rescinded and that the President not longer had the authority to conduct offensive military operations in Southwest Asia). And Congress has the power to control military funding, including cutting funding. But those powers relating to raising military forces and authorizing their use, not deciding how they will be employed. This separation of powers is completely consistent with the rest of the structures of the Constitution: Congrss makes law, the Executive carries them out.

I have absolutely nothing of substance to add but did want to call everyone's attention to this amazing sentence:

I'm with Mitch in asking where you get your understanding of what the Commander In Chief power encompasses from?

You don't literally mean "how those forces will be employed," without Congressional constratint presumably, or you're getting into Yoo-ism: Congress can forbid the President from employing those forces to massacre civilians, or from dropping chemical weapons presumably....you apprently don't agree with it.

I assume you mean something more along the lines of Congress being able to pass laws of general applicability, but not being able to say "you will send divisions X, Y. Z. of the US Marines into Falluja and take the city using RPGs and mortars, with the following model numbers...."

I'm not sure that would be constitutional. But I think that saying--we will fund 120,000 troops but no more into Iraq; or: you are not authorized to use force in Iran; or: you cannot use any of this money into Iran--is, and the President's apparent determination to violate laws like that if he wants to would be illegal.

Yow. That is a hell of a sentence. Although I think it does actually function successfully, if you devote a little time to picking it apart.

The authority to control the war fighting power of the military. To determine strategic military goals, choose what forces will be used to acheive them and how those forces will be employed. The normal incidents of military command.

Now, I'd agree with you that those are all areas in which the President has the authority to act -- all that we are arguing about is whether he has the authority to act in those areas in a manner that controvenes Congressional legislation. Given Article II, section 3, the President never has authority to controvene properly passed legislation -- if he has the authority to countermand legislation, it can only be because the legislation was improper in the first place, and Congress exceeded its powers in passing it.

Here, I'm not seeing a basis for a limitation on Congress's powers to legislate when it comes to warfighting. The specific power to make rules governing the military seems to cover a great deal (say, for example, a law holding that US forces engaged in military operations may not cross national borders without explicit Congressional authorization, which would be a generalized rule, might possibly be relevant to specific warfighting decisions in the current situation). And the power of the purse covers even more -- in all other subject matter areas, funding can be made contingent on how it is spent, and I see nothing in the Constitution which makes Congress's power to control funding more restricted in the military context than in any other.

I assume you mean something more along the lines of Congress being able to pass laws of general applicability, but not being able to say "you will send divisions X, Y. Z. of the US Marines into Falluja and take the city using RPGs and mortars, with the following model numbers...."

That is what LizardBreath sems to be advocating and that is what I am saying is unconstitutional.

saying--we will fund 120,000 troops but no more into Iraq; or: you are not authorized to use force in Iran; or: you cannot use any of this money into Iran

There are exceptions, but in general, this seems to be within Congress's powers as I view them.

it does actually function

I was just cracking up at the pileup at the end. Nevermind me.

Again, there's no obvious Constitutional line between laws of broad general applicability and laws that mandate or forbid specific actions, so long as they are generally within Congress's enumerated powers. Congress passes laws doing things as specific as establishing a Museum of Cheese Varieties in some town in Wisconsin all the time.

And I should reiterate that I think Congress's passing laws of this level of specificity "you will send divisions X, Y. Z. of the US Marines into Falluja and take the city using RPGs and mortars, with the following model numbers...." would generally be terribly ill-advised as a matter of practice -- Congress doesn't have the speed or expertise to make good decisions at that level of granularity. I'm just arguing that there isn't a Constitutional basis for drawing a line between laws controlling the military in a general fashion, which Congress unquestionably has the power to make, and laws controling it in a specific fashion.

Congress passes laws doing things as specific as establishing a Museum of Cheese Varieties in some town in Wisconsin all the time.

Yeah and I wish they'd stop. That town has enough Cheese Varieties museums already!

I think LB's point here is hard to contradict. The idea that the Imperial Presidency is not merely constitutional, but that limits on it are unconstitutional, seems absurd on its face. The Constitution appears to give most of the authority in this kind of thing to Congress, and was more or less treated to have done so right up through WWII. It may be (and probably is) that giving more deference to the Executive than a bunch of gentry living in the 18th century envisioned would be necessary, but all that shows is that the Constitution is flawed, not that there's a constitutional basis for these wild claims of executive power.

In terms of the term "Commander in Chief," it is perhaps worth noting that there are other precedents besides George Washington. The most notable is the British office of "Commander in Chief of the Forces" - the highest officer in the British Army. In the years prior to the American Revolution, this post was held by such notable figures as Lord Stair, George Wade, Lord Ligonier, and Lord Granby.

The position, which was abolished in 1904, was damned close to being honorary. The Commander in Chief certainly had no responsibility for setting military policy and overall strategy - this was the job of the monarch and his responsible ministers, particularly the secretaries of state - while theater operations would generally have been determined by the commanders in theater, without much direct input from London. The Commander in Chief would sometimes be involved in setting strategy in consultation with the king and government, but would also often be merely an administrator - attending to army administrative needs and so forth.

The institution of the American office of commander-in-chief was probably more closely modeled on Washington's role than on the much less significant role of the British officer with that title, but nonetheless the British history of the term would seem relevant.

The British Monarch's control over the military would seem to more closely match what we in America generally envision when we use the term "Commander-in-Chief," but pretty clearly the President has far less power over the military than the British monarch does. Powers which the British monarch still has, notably in this case to declare war, are explicitly given to Congress. The clear intent of the writers of the constitution would appear to have been to make Congress the ultimate arbiter of military policy. The President may have more powers than the British Commander in Chief, but he's not the King of England either - he is a servant of Congress, and is to carry out policies set by Congress. At least, this seems to be arguable.

Was there anything in The Federalist on this subject?

Federalist no. 74 (by Hamilton) explicitly addresses the issue. See http://www.constitution.org/fed/federa74.htm

The President . . . is a servant of Congress

Uh, not a strong argument based on the text of the constitution, why it was adopted or how it has been implemented. There is something on this in the Federalist Papers, and it does not say that the President is the servant of Congress.

Hamilton's implication appears to be that it is incredibly obvious that the President should be commander-in-chief, and gives as precedent the state constitutions, which, I assume, give command of state militias to the governor.

Federalist 26-28 (also Hamilton) appear to deal with military issues in a more general sense, but I've not read them yet - the implication of 26, though, seems to be that it's okay that the Constitution doesn't ban standing armies, because the army will be under the direction of Congress, thus giving little opportunity for tyranny.

re: 88

Right, and the Federalist says:

Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

Ah. 82 makes perfect sense to me.

Federalist 69 is more on point, although it doesn't settle the argument, in that it addresses how the CinC's powers are more limited than that of the British monarch:

Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.1 The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.

We're still left arguing over what 'the raising and regulating of fleets and armies' means. I'd argue that this passage, describing the CinC as the 'first General' suggests that the CinC has no implied power to resist Congress's legislative dictates in this area; that if the Constitution had set up a subsidary office of CinC, separate from the Presidency, it would still have been describable as the 'first General' or leader of the armed forces, but there could be no reasonable claim that it inherently had the power to act in a manner contrary to Congress.

On the other hand, if I were arguing for executive power here, I'd be jumping up and down on the words 'supreme command and direction' with both feet. So I think the Federalist Papers are a wash on settling this one.

In other contexts, I remember lines about what was a "neutral law of general applicability" and what was really starting to encroach more judicial functions were hard to draw--but I don't think there was no line at all. Congress' power to limit the Supreme Court's appellate jurisdiction doesn't mean that they can pass bills saying that "you will not heal the following prisoner's appeals: [list of names".

In this case, Congress seems extremely unlikely to pass a law that comes close to the line, and the Supreme Court is extremely likely to force the President to obey if he refuses to. So I just don't know.

I think you're missing an 'un' in front of what the SC is likely to do there.

Yeah, arguing about this as a legal issue is probably less than useful, considering that there is, as you say, pretty much no chance of it getting adjudicated as such. In order to even get there, Congress would have to stand up sufficiently to pass a law or laws directly governing what we're doing militarily in Iraq, and the president would have to defy them. At that point, we wouldn't be going to court about it, and the courts wouldn't hear it if we did: it'd probably be impeachment or nothing.

In other contexts, I remember lines about what was a "neutral law of general applicability" and what was really starting to encroach more judicial functions were hard to draw--but I don't think there was no line at all. Congress' power to limit the Supreme Court's appellate jurisdiction doesn't mean that they can pass bills saying that "you will not heal the following prisoner's appeals: [list of names".

And this is probably right -- I've overstated my arguments to the extent I've said there are no limits whatsoever on the degree to which Congress can constitutionally micromanage the military through legislation. I should back off to say 'no limits that don't apply to legislation generally'.

yes indeed, missing the "un."

Did someone say 'limits to executive power?' Via Jonathan Zasloff:

My classes think I am trying to be funny when I say that, by simple majorities, Congress could at the start of any fiscal biennium, reduce the president's staff to one secretary for answering social correspondence, and that, by two-thirds majorities, Congress could put the White House up at auction. But I am not trying to be funny; these things are literally true....

Charles L. Black, The Working Balance of the American Political Departments, 1 Hastings Const. L.Q. 13, 15-16 (1974)