What are the limits of presidential power?

[Larrison]

Whoaaa.. lots of questions..

Originally Posted by jBirch

If we are to take what you're saying to its logical conclusion we could come out with the argument that anything done with or by the armed forces are not subject to the laws of the federal government. Interestingly, the tradition of military law as seperate from civilian law would support this view.

As Commander-in-chief of the military (and therefor the ultimate convening authority) the President could be considered to have carte-blanche to do what they like. That there is no court, in fact, that has Jurisdiction over the President as Commander-In-Chief. [ ... ]

Actually there is a court that has Jurisdiction over the President. It's the Congress, and the trial is called impeachment. Congress "Advises and Consents" and through the power of the purse has checks and balances upon the Executive branch. They can't dictate policy and the president can veto laws he disagrees with, so the checks and balances goes both ways. Similarly the President can't sign a treaty or enter into foreign agreements, alliances or entanglements without having Congress ratify the decision. But similarly, Congress can't direct him to make specific actions without letting him veto that.

Originally Posted by jBirch

The Supreme Court, in hearing the case and the President in acting on the advice of the Supreme Court seems to imply that, indeed, the President is a citizen and subject to civilian law while serving in office. Which by extension, means that any military action is subordinate to the Supreme Court and not solely the President. Unless, of course, we believe that the Supreme Court ruling was merely a very well thought out *suggestion* to the President, and not *binding* upon him.

The President is given limited immunity while sitting in office. Once he leaves office he can be prosecuted for actions taken before or after he was President. WHile he is in office, the Supreme Court can rule on the Consitutionality of actions he has taken, but cannot by themselves say that he has broken the law. If the President is deemed to have broken the law, then he is taken to trial by the Congress, which is called impeachment.

There's quite a few Supreme Court decisions juding the constitutionality of Presidental powers. Essentially the Supreme Court ruled that Truman did not have the right to make that authority, and as such his actions were null & void. The essence of this falls around the idea the Executive is single voice in dealing with foreign powers and in executing US desires and policies abroad. He must go back to Congress to obtain the binding authority for committing US troops for more than a limited time, and must obtain the financing for such actions from Congress. Similarly, no President can negotiate a treaty and sign it, and have it go into effect without Congress ratifying it -- as Clinton found out with the Kyoto Protocol, and as laid out to Roosevelt and Congress in US vs Curtiss Wright in 1936.

Originally Posted by jBirch

Which law then is the President subject to while carrying out Presidential duties? Military law, civilian law, both, some beastly hybrid? If Military Law, s the only check on Presidental power then merely Congress's ability to withold money and/or initiate impeachment proceedings? But doesn't the Constitution also give the President the right to create and maintain an army and navy? Isn't Congress then unable to prevent the President from acting as they please when in the role of Commander-In-Chief since they can't cut all funding to the army/navy? Could the President merely declare whatever funding as being necessary to the existence of the Army and Navy?

The President is subject to Constitutional and Civil law while carrying out Presidential duties. However, he is given a shield against harrassment lawsuits while sitting in his office by restricting the indictment and criminal prosecution of a sitting President. However, if he is deemed to have committed such a criminal act, then he can be impeached -- removed from office through a trial in the Congress. Once out of office, a President is now subject to standard civil law.

Members of his adminstration are in a much fuzzier area -- the case law there isn't as specific as who can or can't be compelled by the courts. This has been pursued in both the Clinton and Bush adminstrations when civil law suits were filed against members of the Adminstration to obtain meeting notes and the like from meetings held with members of the Adminstration.

The Consitution makes the President the Commander in Chief of the Army and Navy, making him the sole commander of military operations overseas. Within the US, there are very strong restrictions on the use of military force, both within the law and through tradition. For example, the President cannot call up the National Guard in a state -- IIRC that is the right of the Governor, unless he is willing to go to the Congress and declare the state in in a "State of Rebellion" against the government. But in international operations, much more leeway is given to the president, and restrictions are placed upon the Congress in setting policy.

The President can chose to deploy the army and navy and direct them, but it is up to Congress to raise and maintain that army with things like funding. And the President's power in deploying the army and navy is restricted, since the Congresss must grant the President the power to wage war in specific situations. If the President goes ahead and deploys the military overseas (as was done in Grenada or the Balkans or Somalia, then they have to either limit operations to a fairly short time period, or get Congressional assent to the operation under the War Powers Act (There are some questions which are being debated about the War Powers Act, but in general its been accepted as a restriction on Presidential power with the military.) Similarly, Congress must fund the military -- the President cannot unilaterally declare funding for something, and Congress can shut off the funding. If funds are redirected from one approved usage to another, then that must also be approved by the Congress so a President can't back-door fund a program that way. (I've seen prosecutions in specific government agencies when a funds were moved from one line item to another at pretty low levels, so moving funds enough to support military operations are definitely illegal.)

[YankeeRebel]

Originally Posted by Feltan

Also note, while Truman got pulled up by the short hairs, Lincoln was given almost carte blanche during the civil war for doing far more than simply trying to break a strike.

True, but the Supreme Court later ruled in Ex-parte Milligan that Lincoln's suspension of the writ of habeas corpus in areas where the courts were still operating was unconstitutional.

[Feltan]

Originally Posted by Larrison

... For example, the President cannot call up the National Guard in a state -- IIRC that is the right of the Governor, unless he is willing to go to the Congress and declare the state in in a "State of Rebellion" against the government..

I believe the President is allowed to "Federalize" National Guard units with or without the individual State's consent; however, those units cannot be used for domestic issues -- only overseas deployment or training missions IIRC.

Regards,
Feltan

[YankeeRebel]

Speaking of Ex-parte Milligan, here is an interesting quote from the ruling that was written by Supreme Court Justice David Davis:

"This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew -- the history of the world told them -- the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation."

[YankeeRebel]

Originally Posted by Larrison

Similarly, Congress must fund the military -- the President cannot unilaterally declare funding for something, and Congress can shut off the funding. If funds are redirected from one approved usage to another, then that must also be approved by the Congress so a President can't back-door fund a program that way.

Well, the current president did unilaterally declare funding for military operations in Iraq without the knowledge or approval of Congress. Congress had approved funding for military operations in Afghanistan. According to an interview with Bob Woodward on 60 Minutes,

"And there's this low boil on Iraq until the day before Thanksgiving, Nov. 21, 2001. This is 72 days after 9/11. This is part of this secret history. President Bush, after a National Security Council meeting, takes Don Rumsfeld aside, collars him physically, and takes him into a little cubbyhole room and closes the door and says, ‘What have you got in terms of plans for Iraq? What is the status of the war plan? I want you to get on it. I want you to keep it secret.’"

Woodward says immediately after that, Rumsfeld told Gen. Tommy Franks to develop a war plan to invade Iraq and remove Saddam - and that Rumsfeld gave Franks a blank check.

"Rumsfeld and Franks work out a deal essentially where Franks can spend any money he needs. And so he starts building runways and pipelines and doing all the preparations in Kuwait, specifically to make war possible," says Woodward.

"Gets to a point where in July, the end of July 2002, they need $700 million, a large amount of money for all these tasks. And the president approves it. But Congress doesn't know and it is done. They get the money from a supplemental appropriation for the Afghan War, which Congress has approved. …Some people are gonna look at a document called the Constitution which says that no money will be drawn from the Treasury unless appropriated by Congress. Congress was totally in the dark on this."

So it appears that this president has back-door funded this program without the authorization of Congress. If that was a "limit" to presidential power, this president rolled right over it.

[esskreemr]

The President is Commander-and-Chief of the US Armed forces. During a state of war, he has a great deal of power while executing the actions of his position. Even so, he is bound by the Constitution. He is NOT Commander-and-Chief of the citizens of the United States.

I believe the War Powers Act allows for a certain period of time after war is declared for warrentless wiretaps to be used. That period is 14 days. I can't believe we're even having this discussion. The Constitution of the United States, which Bush swore to uphold, is VERY specific in requiring reasonable cause for search and seizure to be made in sworn testimony. A state of war does not exist simply because the President decides to declare one. The framers of the Constitution were very clear that they did not one rich white guy declaring war whenever he wants. They understood that people die, property is lost and that war is a serious matter, not just another way to prop up a defense budget that grows exponentially each year without justification. We are doomed to fail because the chickenhawks want to throw more money into conventional armament to fight an unconventional enemy. Sound familiar? The US Revolution was won using guerilla tactics learned from the Native Americans. The British failed to adjust and were therefore doomed to failure. America won its freedom. An oversimplification, at best, but it serves as a relevant point.

If you are happy with warrentless searches and the unlimited power of the Commander-in-Chief, perhaps you should move to Cuba, Iran, North Korea or a host of other countries whose 'leaders' have no need to respect any semblance of law.

Bush has failed to make us safer. Ater 9/11 we invaded Afghanistan, the world was behind us. Even the Muslim 'evaluation' of America's actions was relatively high. Then we started on the road to Bush's pet project and invaded Iraq and the World's sympathy quickly evaporated. We have now depleted our military reserves to the point where they have to call up the armed forces ready reserve. We rattle our sabres at Iran, but they know that at best, we can muster a tactical strike because our military forces are worn out and near the breaking point.

President Bush was in office for 9 months before the worst tragedy to happen on our soil occurred. The signs were there. The intelligence was available. The problem wasn't lack of information. The problem was disparate intelligence from multiple sources not being made available in a coherent format. How is adding a few million data streams going to help? How is sending the FBI and the SS on thousands of wild goose chases going to help us catch terrorists. The only terrorists were going to catch now using these means are most likely going to be scapegoats.

Either way, the Bush cabal wins. He has enough Americans willing to roll over and give up their freedoms in the name of the 'War on Terrorism'. Bin Laden was the best thing to come along for the Bush admin. Their confidence and approval ratings were abysmal, nearly as bad as they are now. 9/11 did change everything. Another terrorist attack will give them the power to declare a National Emergency and to suspend the rest of our rights. Of course, that could never happen... this is America. Land of the Free.

[Slim]

Originally Posted by esskreemr

The President is Commander-and-Chief of the US Armed forces. During a state of war, he has a great deal of power while executing the actions of his position. Even so, he is bound by the Constitution. He is NOT Commander-and-Chief of the citizens of the United States.

I believe the War Powers Act allows for a certain period of time after war is declared for warrentless wiretaps to be used. That period is 14 days. I can't believe we're even having this discussion. The Constitution of the United States, which Bush swore to uphold, is VERY specific in requiring reasonable cause for search and seizure to be made in sworn testimony. A state of war does not exist simply because the President decides to declare one. The framers of the Constitution were very clear that they did not one rich white guy declaring war whenever he wants. They understood that people die, property is lost and that war is a serious matter, not just another way to prop up a defense budget that grows exponentially each year without justification. We are doomed to fail because the chickenhawks want to throw more money into conventional armament to fight an unconventional enemy. Sound familiar? The US Revolution was won using guerilla tactics learned from the Native Americans. The British failed to adjust and were therefore doomed to failure. America won its freedom. An oversimplification, at best, but it serves as a relevant point.

If you are happy with warrentless searches and the unlimited power of the Commander-in-Chief, perhaps you should move to Cuba, Iran, North Korea or a host of other countries whose 'leaders' have no need to respect any semblance of law.

Bush has failed to make us safer. Ater 9/11 we invaded Afghanistan, the world was behind us. Even the Muslim 'evaluation' of America's actions was relatively high. Then we started on the road to Bush's pet project and invaded Iraq and the World's sympathy quickly evaporated. We have now depleted our military reserves to the point where they have to call up the armed forces ready reserve. We rattle our sabres at Iran, but they know that at best, we can muster a tactical strike because our military forces are worn out and near the breaking point.

President Bush was in office for 9 months before the worst tragedy to happen on our soil occurred. The signs were there. The intelligence was available. The problem wasn't lack of information. The problem was disparate intelligence from multiple sources not being made available in a coherent format. How is adding a few million data streams going to help? How is sending the FBI and the SS on thousands of wild goose chases going to help us catch terrorists. The only terrorists were going to catch now using these means are most likely going to be scapegoats.

Either way, the Bush cabal wins. He has enough Americans willing to roll over and give up their freedoms in the name of the 'War on Terrorism'. Bin Laden was the best thing to come along for the Bush admin. Their confidence and approval ratings were abysmal, nearly as bad as they are now. 9/11 did change everything. Another terrorist attack will give them the power to declare a National Emergency and to suspend the rest of our rights. Of course, that could never happen... this is America. Land of the Free.

Does mean you're moving to France?

[Philistine]

Originally Posted by Feltan

I believe the President is allowed to "Federalize" National Guard units with or without the individual State's consent; {snip}

However, this is only because Congress has (by statute) given this power to the President. Constitutionally, the President has no power to bring the National Guard (or other Militia) into Federal service, but only to command them once brought into Federal service.

--Philistine

[esskreemr]

Originally Posted by Slim

Does mean you're moving to France?

You wish.

In my defense, the muse of that particular rant comes in a 6 pack which should also explain the 4:46am timestamp.

[umbrella]

-Apparently the sky's the limit. He can do anything he wants because no-one has the balls to do otherwise.

My suggestion to allievate this is to hire people with nuts; another suggestion is to DECENTRALIZE government; putting nutty people like me in charge of things. I know exactly what to do and who to hire. The whole system is now in Washington, because that's where all the hardliners are. Out in the perimeters, is weak. It's like the Roman Empire and that's exactly why it collapsed. The outskirts don't have enough beef.

Hire Me. Put my in the WHITE HOUSE!!!!!! I promise not to screw things up, I know I can do the job.

If they would have CUT NASA; CUT Military and take care of Social Plans; none of this garbage would have happened. When they cut welfare completely off the system; without giving those people due respect with much more nuturing involved, they would have stayed with us; but they were completely cut off with very little notice and went over to islam because they're pissed.

It was screwed up by a bunch of selfish people who thought they knew everything; but under the surface was revenge and hatred towards those "lazy buch of people sucking off the system while 'they the good guys worked'"

[jBirch]

Originally Posted by Larrison

Whoaaa.. lots of questions..


Actually there is a court that has Jurisdiction over the President. It's the Congress, and the trial is called impeachment.

...snip...

WHile he is in office, the Supreme Court can rule on the Consitutionality of actions he has taken, but cannot by themselves say that he has broken the law. If the President is deemed to have broken the law, then he is taken to trial by the Congress, which is called impeachment.


There's quite a few Supreme Court decisions juding the constitutionality of Presidental powers.

...snip...


The President is subject to Constitutional and Civil law while carrying out Presidential duties. However, he is given a shield against harrassment lawsuits while sitting in his office by restricting the indictment and criminal prosecution of a sitting President.

...snip...

The Consitution makes the President the Commander in Chief of the Army and Navy, making him the sole commander of military operations overseas.

...snip...

The President can chose to deploy the army and navy and direct them, but it is up to Congress to raise and maintain that army with things like funding.

...snip...

And the President's power in deploying the army and navy is restricted, since the Congresss must grant the President the power to wage war in specific situations.

So what are the ramifications of an Unconstitutional Presidential Order? How long between the execution of that order and the evaluation of its constitutionality? If the President (as they are currently fond of doing) deploys military forces to an active area, but does not declare war, then what power does Congress have over that decision?

If funds are redirected from one approved usage to another, then that must also be approved by the Congress so a President can't back-door fund a program that way.

At what granularity does Congress approve these funds? If the President has sole discretion over the deployment of the military in non-war situations then can the President use existing approved funds to move those troops from theatre A to theatre B?

Eg// An aircraft carrier is approved from Congress and its operation included for the current fiscal year. The President deploys that carrier to an area neighbouring a hostile area and figther aircraft perform agressive sorties from that platform into foreign airspace. Does Congress approve the funding for the specific sortie or merely for the provision of an aircraft carrier, plus certain weapons and fuel to the President for the current fiscal year?

James.

[Feltan]

Originally Posted by jBirch

So what are the ramifications of an Unconstitutional Presidential Order? How long between the execution of that order and the evaluation of its constitutionality? If the President (as they are currently fond of doing) deploys military forces to an active area, but does not declare war, then what power does Congress have over that decision?



At what granularity does Congress approve these funds? If the President has sole discretion over the deployment of the military in non-war situations then can the President use existing approved funds to move those troops from theatre A to theatre B?

Eg// An aircraft carrier is approved from Congress and its operation included for the current fiscal year. The President deploys that carrier to an area neighbouring a hostile area and figther aircraft perform agressive sorties from that platform into foreign airspace. Does Congress approve the funding for the specific sortie or merely for the provision of an aircraft carrier, plus certain weapons and fuel to the President for the current fiscal year?

James.

The War Powers Act allows the President a fixed amount of time to take unilateral action. I don't recall exactly, but I think it is 90 days before Congress can influence his decision via the power of the purse strings.

Unfortunately, the laws of the US, and other major powers, are more condusive to a 19th or 20th century conflict; one with an acutal declaration of war, and a conclusion by treaty or surrender document. The checks & balances become strained when one contemplates the actions a Commander-in-Chief must take in the age of ICBMs and terrorist acts.

Regards,
Feltan

[Philistine]

Originally Posted by Feltan

The War Powers Act allows the President a fixed amount of time to take unilateral action. I don't recall exactly, but I think it is 90 days before Congress can influence his decision via the power of the purse strings.

60 Days. But, it also says: "Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution."

War Powers Act (My emphasis).

Unfortunately, the laws of the US, and other major powers, are more condusive to a 19th or 20th century conflict; one with an acutal declaration of war, and a conclusion by treaty or surrender document. The checks & balances become strained when one contemplates the actions a Commander-in-Chief must take in the age of ICBMs and terrorist acts.

To an extent, I agree. But I think the answer is to change the laws, rather than ad hoc tinkering by the Executive. To do that, however, there has to be some sort of agreement as to how terrorism is to be treated--conceptually, is it more akin to "war" or "law enforcement," and to the extent it appears to be a threat for the forseeable future--what are the appropriate methods which are both effective and don't violate the Constitution? There seems to be precious little agreement on many of these issues....

--Philistine

[Feltan]

Originally Posted by Philistine

...To an extent, I agree. But I think the answer is to change the laws, rather than ad hoc tinkering by the Executive. To do that, however, there has to be some sort of agreement as to how terrorism is to be treated--conceptually, is it more akin to "war" or "law enforcement," and to the extent it appears to be a threat for the forseeable future--what are the appropriate methods which are both effective and don't violate the Constitution? There seems to be precious little agreement on many of these issues....

--Philistine

I wish THAT was the debate in Washington D.C. right now, and not all the secondary issues that are of little consequence.

Regards,
Feltan

[jBirch]

Originally Posted by Philistine

60 Days. But, it also says: "Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution."

War Powers Act (My emphasis).

--Philistine

So if I understand correctly then, the President can commit troops for up to 60 days unilaterally and can place troops in positions that are not war (unilaterally and continually) unless congress explicitly tells them not to? So the Pres can put troops in Iraq, for example, where they will be shot at, and the best Congress can do is tell him, post hoc, to get them out of there?

The President sure has a lot of unchecked power it seems to me.

James.

[Philistine]

Originally Posted by jBirch

So if I understand correctly then, the President can commit troops for up to 60 days unilaterally and can place troops in positions that are not war (unilaterally and continually) unless congress explicitly tells them not to? So the Pres can put troops in Iraq, for example, where they will be shot at, and the best Congress can do is tell him, post hoc, to get them out of there?

Pretty much.

The President sure has a lot of unchecked power it seems to me.

Not unchecked. First--Congress is the one who passed the War Powers Act in the first place. (Though I think every President has contended--even when following it--that it is an unconstitutional limit on their power). Second--it's not actually unchecked, in that Congress, can, in fact, check it....

--Philistine

[jBirch]

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