Yes, Mr. President, There Are Limits To Your Power & Authority!!!

Congress, the Constitution and War: The Limits on Presidential Power

President Bush doesn’t seem to care that Congress wants a bigger role in guiding the Iraq war. Talking about his plan to send in 20,000 additional troops, he said on “60 Minutes” that he knows Congress can vote against it, “but I’ve made my decision and we’re going forward.”

In other words, President Bush has made an unprecedented grab for unconstitutional power, has defied the will of the vast majority of Americans, thumbed his nose at the last GOP-controlled congress because he knew they would not challenge him, and is now flipping the bird at the new Dem-controlled congress.

Not even Richard Nixon went as far as Bush has gone in asserting powers, authority and sneaky-bastard type deeds. Bush's secretive nature about practically everything the executive branch is doing is in and of itself disturbing. At least a panel of appellate level judges (Secrecy Is at Issue in Suits Opposing Spy Program) have taken notice and are questioning the need for such secrecy, as well as the legitimacy of the claims for the need of all the secret operations being conducted by the Bush administration.

Additionally, under direction from Bush, Cheney and Gonzalez, the DOJ is seeking dismissal of the various suits filed by the ACLU, EFF, CCR and others seeking redress against violations of the Constitution in the warrantless surveillance programs conducted by the NSA. The argument by the Bush gang is that now that they have agreed to place the program under the oversight of the FISA Court, the matter of redress is moot. However, what the Bush gang is ignoring is that there may have been harm inflicted upon thousands of innocent Americans (and legitimate residents and tourists present in our country), as well as several other "top secret" surveillance programs. Additionally, the Bush administration has laid claim to the "possibility" of opening private mail (although they claim they wouldn't), as well as claiming the right to acquire private transaction records from banks, ISPs, telephone companies, and elsewhere.

Given all of these other "Secret Squirrel" operations and the clear and present danger of violating the constitutional rights of thousands of Americans, it would be a sin to allow the argument of the Bush gang and the DOJ to pass for a legitimate claim of righteousness, justice, law or precedent. We can only hope that the Dems have a plan to rein in the out-of-control secret antics of an administration with a passion for ignoring and violating our Constitution.

It is hardly the first time this president has insisted that he is “the decider,” or even the first time he’s used the Constitution to justify it, as Vice President Dick Cheney did when he told Fox News: “The Constitution is very clear that the president is, in fact, under Article 2, the commander in chief.”

What is evident is that Mr. Bush and company think that being the Commander-in-Chief (CIC) also extends to ordering civilians as if they were members of the military. Apparently, he would extend this CIC status to domination over congress. In fact, while he is the CIC of the armed forces, he is so at the discretion of the congress. Should congress decide he has exceeded his authority and failed to meet his oath of office, or committed high crimes or misdemeanors, he can be removed. As I have stated many times, the Pelosi led House should start the impeachment process immediately... for the sake of our Constitution, our fundamental principles and our way of life.

But Mr. Cheney told only half the story. Congress has war powers, too, and with 70 percent of Americans now opposed to President Bush’s handling of the war, according to an ABC News/Washington Post poll, it is becoming more assertive about them. Congress is poised to pass a resolution denouncing the troop increase. Down the line, Congress may well consider mandatory caps on the number of troops in Iraq, or setting a date for withdrawal.

Cheney told only half the story because, like Bush, he believes that congress out to just shut up and let the egomaniacs operating out of the West Wing and the Executive Office Suites run the game without any input from the congress, the American people, or the decent folks of the world. In fact, the recent efforts to capture, detain and question Iranian diplomats--regardless of whether or not they were engaged in espionage or inciting the militias in Iraq--without consulting the Iraqi government is a clear violation of international law, never mind the sovereignty of the Iraqi government that the Bush gang claims is in charge of Iraq's future and governance.

If it does [congress placing caps and spending limits], we may be headed toward a constitutional clash, with the administration trying to read powers into the Constitution — as it has with its “enemy combatant” doctrine and presidential “signing statements” — that the Founders did not put there. The Constitution’s drafters were intent on balancing power so no one branch could drift toward despotism. The system of checks and balances that runs through the document divides the war power between the president and Congress.

These so-called signing statements have no legitimacy under our Constitution. There is no section of the Constitution that conveys such authority to the executive branch under any condition, not even while we are engaged in hostilities. In a declared war--a war declared by congress--the president may suspend habeas corpus, but in any event he must adhere to the Constitution and the laws passed by the congress and signed into law (or passed with a veto override).

But the Bush administration has not drifted toward despotism. It has embraced despotism and used it to establish an ultra-conservative, religiously motivated, messianic fascism that ignores not only our law, but international law, human decency, and has our troops and our nation committing war crimes under the umbrella of fighting terrorism and establishing a new world order based on the Bush Doctrine and the Bush view of regime change.

The recent disclosure that Bush ordered not only the capture of Iranians in Iraq, but authorized the outright murder of any Iranian caught in Iraq and suspected of stirring the Iraqi political stew--without any trials, a right to defend themselves against such claims, and without adherence to international laws concerning the treatment of prisoners--is tantamount to inviting war with Iran and committing war crimes to get the process started.

The Constitution’s provision that the president is the commander in chief clearly puts him at the top of the military chain of command. Congress would be overstepping if, for example, it passed a law requiring generals in the field to report directly to the speaker of the House.

Agreed. Which is why congress should implement the impeachment process immediately. He is a rogue president that has ignored everything that America stands for and has stood for in principle for the last 230 years since the Declaration of Independence.

But the Constitution also gives Congress an array of war powers, including the power to “declare war,” “raise and support armies” and “make rules concerning captures on land and water.” By “declare war,” the Constitution’s framers did not mean merely firing off a starting gun. In the 18th century, war declarations were often limited in scope — European powers might fight a naval battle in the Americas, for example, but not battle on their own continent. In giving Congress the power to declare war, the Constitution gives it authority to make decisions about a war’s scope and duration.

Since this is not a declared war, congress need only withdraw its Authorization for Use of Military Force (AUMF) and the president no longer has the authority to place troops anywhere in pursuit of Bush's ego-maniacal delusions of terrorism under every rock in every country.

While we do need to address the problems and threats of terrorism, we should not be taking on the burden of addressing these matters alone, nor acting as the world's only authority or only solution to deal with the evil bastards of the world (which Bush and company have recently joined ranks with, apparently).

The Founders, including James Madison, who is often called “the father of the Constitution,” fully expected Congress to use these powers to rein in the commander in chief. “The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it,” Madison cautioned. “It has accordingly with studied care, vested the question of war in the Legislature.”

Madison, along with Jefferson and Washington, were men that understood the allure of absolute power and all three resisted it while holding our highest political office, as well as fought it during the Revolutionary War. These were men of profound intellect, principle and decency that held dear our basic values of freedom, liberty and self-government. It is obvious that we have abandoned our obligation of being ever vigilant. It is further obvious that we have allowed a man of small intellect and decadent principles based upon power rather than service to take the reins of our executive branch. Since he has managed to nest a group of similarly unprincipled persons around him, there is no one in the executive branch willing to stand up to Bush, Cheney, Gonzalez and Rice.

I warn everyone in our nation that a failure to act on the part of congress could result in a coup. Indeed, if a group of military officers begin to examine their consciences and their oaths of office, they may find it necessary to take control of the executive branch until the congress find the courage and intestinal fortitude to take the actions that they are sworn to do: "to defend the Constitution against all enemies, foreign or domestic."

In the early days of the republic, the Supreme Court made clear that Congress could limit the president’s war powers — notably in the Flying Fish case. In 1799, during the “Quasi War,” the undeclared sea war between the United States and France, Congress authorized President John Adams to clamp down on trade between the two nations by stopping ships headed to French ports. But Adams went further, ordering commanders to stop ships that were sailing to or from a French port.

When the Flying Fish was seized while sailing from a French port — something Congress had not authorized — the ship’s owner sued. The Supreme Court decided in his favor, ruling that the president had no right to issue the order he did. John Marshall, the nation’s greatest chief justice, declared that even in a time of hostilities, a president’s decision to act militarily beyond what Congress had authorized was “unlawful.”

The number of cases that address the separation of powers and the limits of executive power is significant. Marbury v. Madison (1803) set limits upon the executive and legislative branch by clearly stating that it is the role of the Court to determine the exact meaning and application of the law. Youngstown Sheet & Tube Co. v. Sawyer (1952) also set precedent on limiting the executive power when Truman seized steel mills to facilitate the military actions in Korea. Wiener v. United States (1957) limited the power of the president to dismiss officials appointed by other branches of the government. In United States v. Nixon (1974) the issue of executive privilege and the rights of a special prosecutor and/or congress to subpoena documents related to the wrongdoings of executive branch staffers was decided in favor of the special prosecutor and congress. Bowsher v. Synar (1986) limited the actions of the executive branch in removing an official under the direction of the legislative branch.

The court has repeatedly reinforced this principle. In 1952, in the steel seizure case, it ruled that President Harry Truman could not seize steel mills to avert a strike — even though steel was needed for the Korean War — because Congress had set out a different way of handling the labor unrest. More recently, in Hamdan v. Rumsfeld, it held that President Bush must follow Congressional guidelines when he sets up military tribunals for detainees.

There are other cases, including the suspension of habeas corpus by President Lincoln (Ex Parte Merryman - 1861), which exemplify the issues of separation of powers. But unlike Lincoln and Truman, both of whom eventually submitted to the rulings of the courts, Bush and company do not acknowledge the right to challenge such infractions regarding the separation of powers, and have issues signing statements that attempt to exempt the executive branch from adhering to laws and the Constitution.

Past Congresses have enacted just the sort of restrictions the Bush administration is trying to foreclose today. During the Vietnam War, the Foreign Assistance Act of 1974 capped the number of American military personnel in South Vietnam at 4,000 within six months. The Lebanon Emergency Assistance Act of 1983 required the president to get Congress’s approval for any substantial increase in the number or role of armed forces in Lebanon.

The current session of congress may have to resort to not only voiding/repealing the AUMF, but also the same tactics that were used to curtail the Vietnam War and limit the role of US forces in Lebanon.

There is little question that Congress could use its power of the purse to end a war. But cutting off financing is a drastic step, and one that members of Congress are understandably reluctant to take, because it can look like a refusal to support the troops. The Constitution’s text, Supreme Court cases and history show, however, that Congress can instead pass laws that set the terms of military engagement. Whether it would be wise for Congress to adopt such limits is debatable; whether it has the authority to do so should not be.

Unless the Dems are willing to limit the President Bush in some manner, the only effective approach left would be the option of impeachment. It is my belief that we need to cap the expenses for Iraq, limit the number of forces that can be deployed without first consulting congress, investigate the issues of fraud, and seek impeachment. There are few options left when an entire executive branch has gone rogue and is seeking to implement his own fiefdom and rules of new world order.

Certainly we need to consider a reasonable way to withdraw our troops and leave Iraq with some way of effecting security so that it can continue toward implementing its own form of self-government, but we also need to limit our role as invaders, conquerors and despotic interlopers in Iraq's internal affairs.

The Bush administration insists that if Congress tries to manage the Iraq war, it will leave the commander in chief with too little authority. But the greater danger is the one Madison recognized at the nation’s founding — that all the power will be left with the person “most interested in war, and most prone to it.”

Like most of the arguments offered by the Bush administration, this one is proposed in the all or nothing manner that the entire "war on terror" has been mismanaged and waged. The reality is that the Bush administration has gone rogue and is unwilling to change its course through ordinary political means, ordinary due process or any reasoning approach offered by congress. It is time we call the matter of this presidency to order and hold the rogues in the White House (and elsewhere) accountable to the Constitution and the voices of reason.