The US Constitution

[JimmyTightLips]

You and I can disagree as much as we want - we don't matter much in the broad scheme of things. A President can "opine" quite a bit too, and with more effect than either of us.

However, from a LEGAL point of view, the act is NOT "unconstitutional" unless the Supreme Court rules it so. I don't know all of the Supreme Court cases over the past 40 years but I don't recall one declaring the War Powers Act unconstitutional. Do you?





Yep - that's how the Constitution works - a law passes both houses and goes to the President. If he vetoes it, they may override it with the proper number of votes. If the act is "unconstitutional", that'd be determined by the Supreme Court and not the President or Congress. It hasn't been so far (40 years and counting), so it is considered "legal" and "constitutional" at this point.




I will disagree with you here. Although I could agree in concept and intent, it is not spelled out specifically in the Constitution. The duties and powers of the C-In-C are not specified but the Congress is given the right to regulate the military and the authority to pass laws to execute these rights (elastic clause). Therefore, in my opinion, the War Powers Act of 1973 falls under that umbrella. That opinion has been backed up by a lack of action by the Supreme Court. Until they act, I think this will be the predominant legal opinion.

 

[HarryC]

We will see many more Christopher Dorners

the revolution has begun

 

[EvanD]

It has not been litigated. Reagan ignored it. Bush, if I remember correctly, complied with the spirit of the Act, though not the letter of the Act, enough to avoid a constitutional fight with Congress. (I would opine that he did so because we still have a collective memory of Vietnam in this country, and nobody wanted a second Vietnam with the stuff he was getting us into.) Clinton ignored the Act and a suit was filed, but dismissed.


Courts do not and cannot initiate cases, so that's not a proper way of looking at it.


What do you based that opinion on? We obviously went to different law schools and took different Bar review courses.

 

[CATe]

Abject nonsense - and in exceptionally poor taste might I add

 

[WinoA]

Oooh, this is delicious. Congressmen cannot bring suit to enforce the War Powers act. That's why the case was dismissed!

Campbell v. Clinton


But can ordinary citizens bring suit?
Eh, no. They can't do it either.

Kucinich v. Obama


Effect: the statute is unenforceable.

 

[MOHIT]

You left off that Ford complied with the Act. Regardless, each President presented a rationale to avoid the terms of the Act. They didn't quite "ignore" it as much as they made sure they had an argument to explain why they didn't comply.


I think this link gives a very good overview of the Act and the questions around it. It also shows that each President was highly aware of the threat of this Act and so did things to reduce the chance of a legal challenge to it.

http://www.loc.gov/law/help/war-powers.php




Yes - I am aware of that. I don't recall ever stating that (if I did, please quote it for me)

In essence, here is my argument:
The War Powers Act was passed by both Houses of Congress (legally done). Then it was vetoed by the President (legally done). Then Congress overrode the Veto (legally done) and it became law. In order to remove it legally, you need a new law (hasn't happened yet) or someone needs to bring a challenge (a case) up through the court system to the Supreme Court. Until that happens, it remains "constitutional" as a legally passed law that has not been ruled unconstitutional by the Supreme Court.


That's it. What part of that do you think is not true or not applicable? I would genuinely like to know. I am not interested in the feelings/morality/or whatever - just the legal side. That's what I have been arguing.



From a purely layman's point of view, there hasn't been a significant legal challenge in 40 years that has resulted in a Supreme Court Case to overturn it. Presidents, although they may have disagreed with the Act, have made sure to back themselves up with other rationale "just in case" there was a challenge. To me, that seems to be an indication that the Executive branch is concerned that a ruling could strengthen this, and therefore wish to avoid the chance of strengthening it. And, for the past 10 years, with the "War on Terror", it's more of a non-issue.

I just don't see any cases that will come up and reach the Supreme Court to overturn it.

I would imagine that you will see future cases focus on issues like illegal detainees, elements of the Patriot Act, elements of the War on Terror, and so on instead. Presidents seems to have figured out how to get around the War Powers Act for the most part so I don't see much incentive to try to overturn it. But, that still doesn't make the act "illegal" or "unconstitutional".


EDIT I just read the Authorization for Use of Military Force (Sept 2001)that gives much broader powers to the President regarding use of the military on the "War on Terror". If you look at it, you will note that it references and ties into the War Powers Resolution. I think the current wide use of the military without Congress having to declare war is something that our past few Presidents have enjoyed. I doubt if they would want to overturn the War Powers Resolution at this point as it may impact how the AUMF is applied.

This article made some great arguments for both sides and seems to reinforce the notion that since nothing has really changed over the past 40 years, there's a good chance that it won't...
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3266&context=fss_papers&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Df%26rct%3Dj%26url%3Dhttp%3A%2F%2Fdigitalcommons.law.yale.edu%2Fcgi%2Fviewcontent.cgi%253Farticle%253D3266%2526context%253Dfss_papers%26q%3Dwar%2Bpower%2Bact%2Bconstitution%2Byale%26ei%3DVDQiUYr3F8jH0QH95YDACA%26usg%3DAFQjCNFx375JLvfZ0I02-MtsKUIcMcNqGA#search=%22war%20power%20act%20constitution%20yale%22



That's a bit of snarky note in what's been a fairly fun set of discussions. I have never claimed to have gone to law school at all. I'm proud to have a higher calling - being a High School History Teacher.

Considering our earlier exchanges where you made several mistakes (which you mentioned) and where you seem to have missed some basic elements of the Constitution (e.g. in section 8), I really hope you are not a practicing Constitutional Attorney. (You aren't, are you?)

Instead of snarkiness, why not take a look at my argument in bold-faced type and let me know where I am wrong. No need for the moral/emotional/political argument - just the legal side. Which, if you went to law school and took a bar review course, you should be able to handle with aplomb.

(Feel free to note your qualifications if you'd like - what law school, when did you pass the bar, and what area do you practice in).

 

[MiSH]

I basically agree. I think, though, the entire confusion was that we're using the word differently. You're saying that the War Powers Act is "constitutional" because it was legally passed by Congress, and never overturned by a court. That's not quite the best way to use the word. I agree that a law is enforceable until struck down by a court, but we can rightly call something "unconstitutional" even before it is struck down. The mere fact itself that a statute is legally passed does not equate to the statute being "constitutional." They're not quite synonyms. I'll give you a hypothetical example so clear that we can't possibly disagree about the outcome:

Suppose the City of Las Vegas gets tired of those girly tracts passed out on the sidewalks near the big hotels, so with a 98% "yes" vote it outlaws the distribution of tracts on city sidewalks.

Me: That hypothetical law is "unconstitutional" even though it was legally passed, and even though no court has struck it down. It's dead on arrival. In that same meaning of the word, I maintain that the War Powers Act is "unconstitutional."
You: That hypothetical law is "constitutional" because it was legally passed and no court has struck it down.

You and I have been using the word "unconstitutional" differently, I think.



In light of those standing cases, the Act will never be litigated or enforced. It's a dead statute! But yes, I also expect future cases about detainees, etc.

I do federal income tax collection law, and criminal appeals. Criminal law is fun.

 

[coryk125]

Aikido County Sheriff's Department

I guess they do not have guns and wear skirts

 

[sjesamurai]

That very well could be it!




Cool - sounds fun.

 

[Blindy]

Excellent! Now, in that Las Vegas example, do you understand why I say the hypothetical statute is unconstitutional? And, do you think you should deem that statute "constitutional"? (Just getting clarification as to what page we're both on.)

 

[Chesticles]

Sort of, but no.

In that example, it is clear that the law would be deemed "unconstitutional" if a challenge (a case) were brought to the Supreme Court. However, until that happens I see that law as "not unconstitutional" and most likely it would be enforced and penalties applied until challenged legally.

Most likely in a case like that, where it is clear that this type of law would violate the 1st amendment, I doubt the City's attorneys and leaders would pass the law in the first place, knowing it could get struck down and possibly cause problems for the city from those who were charged under it.

In the case of the War Powers Resolution, Congress posited that they could indeed legislate this kind of control (putting those regulations under their Constitutional right to declare war and to regulate the military). There was enough support for it to pass both houses and to override a Presidential veto. The law they wanted to create is no where near as clear cut as your Las Vegas example. The Las Vegas example clearly violates the First Amendment but the War Powers Act may or may not be completely in line with the Constitution (argument between branches - therefore it needs to be resolved by the Supreme Court)

Also, where the Las Vegas law would face near immediate challenge (1st amendment) and dismissal, the War Powers Resolution was able to avoid that and remain as law for the past 40 years. Even Presidents who felt it was unconstitutional for the most part avoided challenging it. Now the US is actually fighting a war ("on Terror") based on language (AUMF) directly tied to the War Powers Resolution. I think this kind of 'past practice' strengthens the legitimacy of the War Powers Act.

I like this quote form the War Powers Act - I think it lays the rationale and argument very well :



I think beyond here we are merely arguing for argument's sake and I think we've gone about as far as we are going to in the example. I'd be happy to discuss other Constitutional Issues gladly but I am about 'typed out on this one.' (That and I will be offline for a few days too! )

 

[lizzie0012]

Agreed. Cheers.

 

[Katrina_Katrinat]

Marvin the Martian is my favorite Looney Tune character followed by a close second for Bugs

Your avatar has me using my vocals every time I read your post.

In other words, I am speaking in this voice as I read your posts

From what I am told, I have a good impersonation vocal of Marvin the Martian, Yoda, and Pee Wee Herman.

As for the Constitution, I like going to the voting booths without having a gun pointed at my head