russia interference, trump, collusion, etc

[Spider]

[JDHURF]

[Spider]

[Philly]

While Hurf will argue pedantically on the internet until he keels over, I could actually imagine Spider screaming "NO! You might have interpreted that to be Han Solo's intent in your own mind, but it is in NO WAY supported by any canonical material!" at some random 11 year old in the movie theater lobby after the premier of The Force Awakens.

[JDHURF]

[Spider]

[JDHURF]

[exploited]

Everything I've read about this issue essentially portrays it as an open constitutional question. Every President since the WPR was passed has declared it unconstitutional. The Attorney General's Office has argued that the President may unilaterally commit to military action without prior or even subsequent Congressional authorization. Further, the Supreme Court ruled, in Schlesinger v. Holtzman, that the Constitution vests military matters in both the Executive and Legislature, making it impossible for the Courts to order the President to act or cease acting on these matters (under the political questions doctrine). More importantly, while the court initially issued a court order telling Nixon to stop bombing Cambodia, this order was ignored by the US military.

In other words, it seems clear to me that while the intentions of the Founders were clear, several centuries of precedent and pragmatism, combined with the overall weakening of Congressional oversight, has created a situation where the President can do what he pleases, and the only legal recourse for Congress is to either impeach him, or to cut off funding. Both of which are actions already under their authority, and not at all impacted by the WPR.

Historically, obtaining a declaration of war is rare. But more then that, Obama's AG claimed that Presidents have acted over 200 times without any Congressional authorization throughout history. Which, if true, would defeat Hurf's claim that these recent acts are an aberration.

Basically, at this point, I don't think it is productive to argue about what the Founders wanted, or what the plain meaning of the Constitution is. The courts cannot settle this question for us, and so that leaves things to Congress. So, this is what we know:

1. The courts cannot or will not intervene, as this is a "political question" with serious implications to national security.

2. The President can attack anybody in the world, at any time, without Congressional authorization, so long as he believes he is acting to protect the United States, its territories, possessions or armed forces, from an actual or imminent threat. This is essentially a free hand, as the WPR does not say exactly what that might mean. If you believe the WPR is constitutional, he can do this for up to 60 days, with the only requirement being that he informs Congress. If you believe the WPR is unconstitutional, there are no limit to his war-making powers.

3. If the President continues to wage war after 60 days, there are no statutory consequences. I strongly suspect this is due to the authors of the bill being aware that they were treading into very uncertain waters. The only possible consequences are political - impeachment or funding removal.

4. Note that neither of these consequences infringe upon Presidential power. Impeachment is the process by which the legislature charges a high official for a particular crime, and then presumably removes them from office. If you aren't President anymore, you no longer have war-making power. Cutting off funding is an absolute Congressional right, and does not infringe or alter Presidential authority - it is a sort of work-around, allowing Congress and the Executive to avoid a Constitutional crisis.

So, to conclude, the only possible way to resolve this situation is to bring de facto reality inline with de jure reality. That will require the Supreme Court to put aside the political question doctrine, or it will require Congress to either alter the Constitution to clarify the war-making powers of the President, or use its existing impeachment authority to punish breaking the WPR. Both of these options are extremely unlikely, and so Spider is likely correct to say that it will not be addressed.

[spacemonkey]

The bombs have been dropped. Pondering the permission now slip is pointless. Legal terms = mutated point.

[JDHURF]

The Supreme Court ruling in Schlesinger v. Holtzman illustrates that the war powers is held by the Congress and the President. The Cambodia bombing campaign under Nixon isn't the best example for uniform legal precedent. Cambodia wasn't an isolated incident, it was an extension of the Vietnam war and included Laos. Vietnam was surely one of the most obvious and egregious disruptions of precedent. It was not only a disruption in legal precedent, but an actual social disruption which initiated extensive civil protests and unrest. I cited the case weeks ago. It must be remembered that Vietnam was initiated by Kennedy and continued by Nixon until his administration withdrew. Nixon's depredations came to an infamous end.

While it is crystal clear what the intent of the framers of the Constitution is, as I've said, the Constitution is simply the foundation upon which the codification of statutory laws is predicated. The bulk of legal precedent aligns with the Constitutional law regarding the war powers. The couple centuries and several decades of precedent weren't significantly disrupted until, as I observed, the obvious anomalies of the Korean police action and Vietnam which includes Cambodia and Laos. Interestingly it was precisely the controversies of Vietnam that led Congress to codify the war powers in the United States Code.

As the U.S.C. specifies, a declaration of war is only the first of three instances that applies to the war powers, the second is specific statutory authorization. Declarations of war are not as common as specific statutory authorizations and neither, on historical balance, are anomalies such as Vietnam. I've not seen where Eric Holder ever claimed that Presidents have "acted over 200 times without any Congressional authorization throughout history." He made some shamefully fallacious statements regarding surveillance that I'm aware of, so while he may very well have said something of the sort, I also very much doubt that he was only referring to the war powers.

The courts are only going to review the law if a case is brought to them, such as in the case of Schlesinger v. Holtzman. This is an issue that lies with the Congress and the executive. Historically the President has been prudent in coordinating with the Congress, as they have known that engaging of the military can be perilous. Vietnam made this all the clearer. The 2001 AUMF has really upended all of this. So to effectively address the issue doesn't at all require Congressional alteration of the Constitution. No one has even suggested an amendment and for good reason, it's as unnecessary as it is ludicrous. A Congressional repeal of the AUMF would be effective, as the ACLU has been arguing for. A rewriting of the AUMF would be at least partially productive. There are legislative options and, as I've observed, one of the only benefits of Trump's election is the realization of a significant segment of the political establishment that such legislation is absolutely necessary. With Trump in the executive and a republican majority in the Congress the prospects for the immediate present are minimal. Come the midterms and further policies and actions in Syria, Iran, North Korea, etc., one may predict a significant shift in the prospects.