It seems that so-called Progressives have begun to focus on whether the Bush Administration plans to launch preemptive action against Iran.
http://notlarrysabato.typepad.com/doh/2007/02/eric_cantor_del.html#comments and http://www.raisingkaine.com/showDiary.do?diaryId=7073.
http://www.tpmmuckraker.com/archives/002510.php
Even the junior senator from Virginia has gotten into the act. http://www.tpmmuckraker.com/archives/002510.php. It seems that Senator Webb believes that the President cannot launch military action without Congressional authorization or a formal declaration of war. I wonder where Jim Webb stood on this issue when President Reagan ordered the invasion of Grenada in 1983 or bombed Libya in 1986?
Stepping back from the current crisis with Iran, the real question is whether the Commander in Chief has the constitutional authority to order any military strike without Congressional authority. Many liberal bloggers without any formal education in constitutional law have been have been pointing to Article I of the Constitution.
In response to these voices, I have prepared the following legal finding as to the scope of the President's authority to take military action against Iran -- or any nation or organization posing threat to the United States:
The President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power when it passed the War Powers Resolution Act of 1973, 50 U.S.C. Sections 1541-1548. As part of my analysis, I have focused on three keys areas which underscore the President's plenary authority as Commander in Chief: (a) the text and structure of the Constitution, (b) various decisions supporting the view that the President has the authority to initiate military action as Commander in Chief, and (c) recent examples of military action ordered by American Presidents without Congressional authority.
The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore, the power, to use military forces in situations when national security is in peril. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States...." This section of the Constitution gives the President plenary power to use military fore in response to threats around the world. See Johnson v. Eisentrager, 339 U.S. 763,789 (1950) (holding that the President has authority to deploy United States armed forces abroad or to any particular region); see Loving v. U.S., 517 U.S. 748, 776 (1996) (acknowledging that the powers of the Commander in Chief are 'clearly extensive'); see also Maul v. U.S., 274 U.S. 501, 515-16 (1927); Mass. v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (holding that the President has the power to station forces abroad); see also Authority to Use U.S. Military Forces in Somolia, 16 Op. O.L.C. 6 (1992).
Indeed, the weight of authority as propounded by the United States Supreme Court and Circuit Courts holds that the President's powers as Commander in Chief are plenary. Many currently misread Article II and misunderstand the nature of a declaration of war. Declaring war is not tantamount to making war. Indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." See 2 The Records of the Federal Convention of 1787, at 318-319. Many of the Founders recognised that without the change, the Constitution would limit the President's ability to respond to emergency situations.
The Framing generation well understood that declarations of war were obsolete. No less than Alexander Hamilton noted that "the ceremony of a formal denunciation of war has of late fallen into disuse." See the Federal No. 25, at 133. Instead, of serving as authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. Given this context, it is clear that Congress's power to declare war does not constrain a President's independent and plenary constitutional authority over the use of military force.
In recent memory, the Office of Legal Counsel of five Administrations, including those of Clinton, Carter, Bush, Reagan, and Nixon, has taken the position that a President may deploy military force without congressional authority. President Reagan launched operations in Grenada in 1983 and Libya in 1986. President George H.W. Bush launched Operation Just Cause in Panama in 1989 -- removing Noriega from office. In the 1990s, Presidents Bush and Clinton conducted operations in Somolia without Congressional authority. In 1998, President Clinton launched military action against Afghanistan and Sudan. In 1999, President Clinton conducted operations against Serbia.
These operations were not without earlier precedent dating back to the 19th Century.
My findings in no way discount that Art. I of the Constitution does, indeed, give Congress the sole authority to formally declare war. Moreover, Congress has the purse strings and can limit funding. On the subject of whether this power to declare war can be construed to suggest that the President cannot take military action without seeking a formal declaration of war, the weight of authority is clear that Congress cannot prevent a Commander in Chief from exercising his duties under Article II. Certainly, Congress can vote to cut off funding as it did during the Vietnam War in 1973.
The United States Supreme Court is the final arbiter of Constitution -- not Congress. Clearly, Congress has the power of the purse strings. Yet, the President is fully vested with authority to strike Iran with airstrikes should that become necessary. If international efforts fail, military action will be necessary to prevent Iran from developing nuclear capability. When that day comes, who knows. The issue of Iran's involvement in Iraq should not be confused with the issue of nuclear capability. To deal effectively with Iran, we must continue with international pressure. However, we must also keep all options on the table.
Some American President, whether it be Bush, Clinton, McCain or Guliani will have to deal with Iran sooner or later.
http://notlarrysabato.typepad.com/doh/2007/02/eric_cantor_del.html#comments and http://www.raisingkaine.com/showDiary.do?diaryId=7073.
http://www.tpmmuckraker.com/archives/002510.php
Even the junior senator from Virginia has gotten into the act. http://www.tpmmuckraker.com/archives/002510.php. It seems that Senator Webb believes that the President cannot launch military action without Congressional authorization or a formal declaration of war. I wonder where Jim Webb stood on this issue when President Reagan ordered the invasion of Grenada in 1983 or bombed Libya in 1986?
Stepping back from the current crisis with Iran, the real question is whether the Commander in Chief has the constitutional authority to order any military strike without Congressional authority. Many liberal bloggers without any formal education in constitutional law have been have been pointing to Article I of the Constitution.
In response to these voices, I have prepared the following legal finding as to the scope of the President's authority to take military action against Iran -- or any nation or organization posing threat to the United States:
The President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power when it passed the War Powers Resolution Act of 1973, 50 U.S.C. Sections 1541-1548. As part of my analysis, I have focused on three keys areas which underscore the President's plenary authority as Commander in Chief: (a) the text and structure of the Constitution, (b) various decisions supporting the view that the President has the authority to initiate military action as Commander in Chief, and (c) recent examples of military action ordered by American Presidents without Congressional authority.
The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore, the power, to use military forces in situations when national security is in peril. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States...." This section of the Constitution gives the President plenary power to use military fore in response to threats around the world. See Johnson v. Eisentrager, 339 U.S. 763,789 (1950) (holding that the President has authority to deploy United States armed forces abroad or to any particular region); see Loving v. U.S., 517 U.S. 748, 776 (1996) (acknowledging that the powers of the Commander in Chief are 'clearly extensive'); see also Maul v. U.S., 274 U.S. 501, 515-16 (1927); Mass. v. Laird, 451 F.2d 26, 32 (1st Cir. 1971) (holding that the President has the power to station forces abroad); see also Authority to Use U.S. Military Forces in Somolia, 16 Op. O.L.C. 6 (1992).
Indeed, the weight of authority as propounded by the United States Supreme Court and Circuit Courts holds that the President's powers as Commander in Chief are plenary. Many currently misread Article II and misunderstand the nature of a declaration of war. Declaring war is not tantamount to making war. Indeed, the Constitutional Convention specifically amended the working draft of the Constitution that had given Congress the power to "make" war. When it took up this clause on August 17, 1787, the Convention voted to change the clause from "make" to "declare." See 2 The Records of the Federal Convention of 1787, at 318-319. Many of the Founders recognised that without the change, the Constitution would limit the President's ability to respond to emergency situations.
The Framing generation well understood that declarations of war were obsolete. No less than Alexander Hamilton noted that "the ceremony of a formal denunciation of war has of late fallen into disuse." See the Federal No. 25, at 133. Instead, of serving as authorization to begin hostilities, a declaration of war was only necessary to "perfect" a conflict under international law. Given this context, it is clear that Congress's power to declare war does not constrain a President's independent and plenary constitutional authority over the use of military force.
In recent memory, the Office of Legal Counsel of five Administrations, including those of Clinton, Carter, Bush, Reagan, and Nixon, has taken the position that a President may deploy military force without congressional authority. President Reagan launched operations in Grenada in 1983 and Libya in 1986. President George H.W. Bush launched Operation Just Cause in Panama in 1989 -- removing Noriega from office. In the 1990s, Presidents Bush and Clinton conducted operations in Somolia without Congressional authority. In 1998, President Clinton launched military action against Afghanistan and Sudan. In 1999, President Clinton conducted operations against Serbia.
These operations were not without earlier precedent dating back to the 19th Century.
My findings in no way discount that Art. I of the Constitution does, indeed, give Congress the sole authority to formally declare war. Moreover, Congress has the purse strings and can limit funding. On the subject of whether this power to declare war can be construed to suggest that the President cannot take military action without seeking a formal declaration of war, the weight of authority is clear that Congress cannot prevent a Commander in Chief from exercising his duties under Article II. Certainly, Congress can vote to cut off funding as it did during the Vietnam War in 1973.
The United States Supreme Court is the final arbiter of Constitution -- not Congress. Clearly, Congress has the power of the purse strings. Yet, the President is fully vested with authority to strike Iran with airstrikes should that become necessary. If international efforts fail, military action will be necessary to prevent Iran from developing nuclear capability. When that day comes, who knows. The issue of Iran's involvement in Iraq should not be confused with the issue of nuclear capability. To deal effectively with Iran, we must continue with international pressure. However, we must also keep all options on the table.
Some American President, whether it be Bush, Clinton, McCain or Guliani will have to deal with Iran sooner or later.
