Tenth Amendment Center: Executive War Powers Have Strict Constitutional Limits
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Executive War Powers Have Strict Constitutional Limits
Original article with audio is at Tenth Amendment Center: http://tenthamendmentcenter.com/2012/03/15/executive-war-powers-have-strict-constitutional-limits/
by Derek Sheriff
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United States Secretary of Defense Leon Panetta caused quite a stir last week when he took the position thatno approval from Congress is necessary to take offensive military action against Syria. He indicated the administration would make international approval a priority, with consultation with Congress a secondary consideration.
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httpv://www.youtube.com/watch?v=5zNwOeyuG84&feature=youtu.be
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Every day, it feels more and more like we live in what comes very close to being an elected dictatorship.
Sen. Jeff Sessions (R-Ala.) asked the Secretary specifically, “Do you think you can act without Congress to initiate a no-fly zone in Syria?”
He was visibly quite taken aback when Panetta responded.
“Our goal would be to seek international permission, and we would come to the Congress and inform you and determine how best to approach this — whether or not we would want to get permission from the Congress…I think those are issues we would have to discuss as we decide what to do here.”
The defense secretary made it clear to the senator that the primary objective would be to first secure international approval for military action, and then tell the Congress what they might decide to do, after which the administration would consider asking for congressional approval.
After Sessions expressed his complete dismay at the secretary’s clear intent to exclude Congress, which possess sole constitutional authority to declare war, from the decision making process, Panetta defended his position.
“I’ve also served with Republican presidents and Democratic presidents who always reserved the right to defend this country if necessary.”
Secretary Panetta correctly asserts that every president has rightfully reserved the authority to defend this country, if necessary. But I would also argue that a no-fly zone, or any other offensive military action in Syria, is far from necessary to defend the United States.
As might be expected, there was no shortage of criticism from Republicans, much of it aimed at the administration for seeking international permission rather than the president usurping Congress’ constitutionally delegated war powers. I won’t name names, but many Republicans, who either pretended to be outraged or were genuinely upset, had no issues at all with previous Republican administrations using the military for offensive wars without prior permission from Congress.
But that’s another article…
Frankly, what surprises me is not Panetta’s claim that the president has unlimited authority to wage war without Congressional approval. Lots of presidents, both Republicans and Democrats, have claimed that authority, at least since Truman’s decision to intervene in the Korean War without consulting Congress. What surprises me is that anyone in the Obama administration still feels obligated to provide any kind of legal cover.
Yet Secretary Panetta did bother to offer a up a fig leaf, asserting that the president has the right to defend this country without obtaining prior permission from Congress. I do think it is worth analyzing this statement, since it can illustrate something about what powers the Constitution actually delegates to the federal government when it comes to waging defensive war.
So was Panetta correct about a president’s right to defend this country without permission from Congress?
The Short Answer is, yes.
I’m unaware of any reliable constitutional scholar who would deny that the president is empowered by the Constitution to repel an invasion of U.S. territory. In their book, Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush, Kevin Gutzman and Tom Woods explain the Framer’s intent.
“Although the Constitution withholds from the president the power to commence hostilities, the Framers did envision a defensive presidential power to respond to attacks in extreme cases that will admit of no delay.”
However, equating the initiation of a no-fly zone, air strikes against foreign military targets, or the commitment of ground forces, however small or covert, in a country located on the other side of the planet with “defending” our country is simply “rhetorical nonsense — nonsense upon stilts.”, as Jeremy Bentham once described a different set of ideas I happen to embrace.
Even if the Assad regime, or the insurgents who might overthrow it, presented a clear and present danger to the United States, that would hardly justify military action without a declaration of war from Congress. As Kevin Gutzman and Tom Woods pointed out in the same chapter of their book, “Even when Japan attacked Pearl Harbor in 1941, President Franklin Roosevelt did not retaliate on his own authority but went to Congress for a declaration of war.”
There is no constitutional basis whatsoever for engaging in offensive warfare unless the decision to do so is made by Congress. For a more detailed examination of this question, I highly recommend reading constitutional scholar, Robert G. Natelson’s article, “Obama’s Libyan Operations are Unconstitutional”. His piece systematically dismantles the flimsy arguments of those who would try to portray Obama’s actions in Libya as somehow “less than war”, or an attack on Syria as a defensive operation.
Even though it appears that U.S. military action in Syria may be off the table for now, it’s still important to examine the arguments surrounding this conflict and previous ones as well. When arguments are made in support of unconstitutional wars in the future, those of us who wish to support and defend the Constitution can be better prepared to explain and articulate the very limited war powers delegated to the executive branch, in order to educate others who may still be on the fence.
What Do We Do About it?
And for those who do still care about the Constitution and the rule of law, the next question must be, “What then do we do about it when those in power simply refuse to abide by the Constitution?”.
I’m personally convinced that the internal checks and balances built into the federal government broke down long ago and are, for all practical purposes, useless at this point in history. The three branches of the federal government conspire to usurp more power at least as often as they act to limit each other’s power. That’s why many concerned citizens, frustrated by the failure of elections to arrest the progress of tyranny year after year, insist that there’s just going to have to be a revolution at some point. But the federal system established by the Constitution provides at least one final structural protection against tyranny that does not involve popular resistance, secession or full scale revolution. That protection comes from the power of the states.
In his “Exposition of the Virginia Resolutions of 1798”, Judge Abel P. Upshur asked the question, “Is there, or is there not, any principle in the Constitution of the United States, by which the States may resist the usurpations of the Federal Government; or are such usurpations to be resisted only by revolution?”
I certainly believe that there is such a conservative principle in the Constitution, otherwise I would not be writing this. And thankfully, the Tenth Amendment Center has been providing model legislation for several years, specifically designed to help state legislators make use of that conservative principle, otherwise known as state nullification.
But can state nullification provide an effective check against an out of control president determined to wage unconstitutional wars? I certainly believe it can. But in order to work, it requires the people of the several states to shift their focus from Washington, D.C. to their state capitals.
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Continue reading entire article at Tenth Amendment Center:
http://tenthamendmentcenter.com/2012/03/15/executive-war-powers-have-strict-constitutional-limits/
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Note: From the comment section below the article at the Tenth Amendment Center we have picked a good one to share with readers here -
Someone named Wulirider had this to say -
Enjoyed reading your article. AS for the Dick Act, my reading of Edwin Vieira’s work, a constitutional lawyer and writer on the militia in the constitution, differs from your interpretation regarding the federalization of the militia. The militia, having existed for some 150 years prior to the Constitution remains a local creation for local issues that can be called up at state and then federal levels as needed by the President. The National Guard is a beast of another color, similar to, but not the same creature, but a new creature, painted over to look like, but is not the constitutional militia as defined. It is a hybrid, made out of new cloth. It was, my words, a progressive movement to steal the concept and create a federal beast, to usurp the intent of the concept for solely federal reasons. It was yet another theft of the word or concept of the millitia. Called verbicide, the pro-state folk stole the idea, but Dr. Vieira’s work shows that the Constitutional militia is a local phenomenon, under the state governor and, can be called on by the President, but is not a ‘given’ that the governor would abide, again my thoughts, as the purpose of the militia is local action, not distant action for frivolous fear mongering wars on terrorist, another verbicidal word creation. Terrorism is a tactic not a noun. Any way, as defined by the FBI and the feds, all of us are terrorist for speaking out!!
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March 19th, 2012 at 3:14 pm
We have to go to the corporations,& the lobiest had their hand in getting this thug elected,We need flyers and signs put out now, The corrupt FED,& Social Security,wern;t in the federalist papers,[the senators and congressman dont even pay into social security.That is one reason for the silence,and its time to freeze the assets of the Rothschilds,Soros,goldmansachs.Tell the corporations to get out of these big banks that are pulling ponzi schemes all over the world,or we might get out of them,example GE.drkates federalist papers & blog drkatesview
March 19th, 2012 at 6:19 pm
sky @ comment #1,
Big corporations and big banks are not the problem, but rather government intervention in these institutions.
There’s nothing anti-free-market about the corporate structure, or banks, per se. It’s the fiat money that keeps getting printed which allows the government, government-protected corporations and banks, government-protected Unions, to steal the value of the money of the people, because we are forced to use the fiat money which they can print at will.
There is no way to stop the violations of the Constitution without returning to a precious metal currency. Paper is not money, but the government is running under the assumption that it is (even though the Constitution clearly seeks to maintain a gold and silver currency standard);
They can do whatever they want, because we keep accepting paper in exchange for goods and services.
March 21st, 2012 at 8:26 am
http://www.youtube.com/watch?v=t1_urVQRPWU
March 21st, 2012 at 3:20 pm
Perhaps I’m just a wee bit daft in the way I see this. No where here did I see an actual way of stopping the president or congress from doing almost anything they choose to do.
I haven’t see anything on stopping the cash flow to washington, recalling our soldiers from duty nor anything else that will stop the folks in washington.
Where are the police powers to arrest any of these folks for treason or any other charges?
Power is the only thing that these individuals understand and what would happen if they sent federal troops into a state like they did during Katrina to disarm the population.
There’s a storm brewing and it could be a hard one to weather if our politicians don’t wake up.
March 21st, 2012 at 6:57 pm
You asked “what do we do?”
That is easy, we fire them, we arrest them, we hold them for prosecution until we replace the domestic enemies in the judicial branch.
The 10th Amendment says the states and the people have more power then the federal gov.
The Constitution assigns limited power divided between three branches of our federal gov.
The Bill of Rights says that no one serving in OUR gov can ever lawfully take our rights away, that is the act of a domestic enemy working against our nation.
Then we have a president, a sec of defense,, and a gen who all claim that their “Authority” comes from the United Nations and NATO, NOT from the US Constitution.
What part of “treasonous acts” is not understood here? I guess I will have to make a citizens arrest since not ONE person who took the Oath will do the job of “supporting and defending the US Constitution.
As a US citizen I will most likely be arrested. Since they are also allowing Sharia law into our courts, I am sure it is also in our gov, so as a female I am sure it will be very unpleasant what they will do.
But someone has to stand up and I guess it will have to be me.
I will go with no weapons but the US Constitution as the type of MY government, and the refusal to let domestic enemies destroy my nation from within. Am I afraid? yes, but we are all afraid anyway.
Stay safe and detention free all.
March 28th, 2012 at 5:59 pm
“U.S. Subservient to U.N.”
http://wweethepeople.patriotactionnetwork.com/2011/10/08/u-s-subservient-to-u-n/
April 3rd, 2012 at 6:14 am
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*********** “OBAMA”-”THE HITLER WANNABE SONG” ***********
………(SING TO THE BEVERLY HILLBILLIES THEME)…(Version 6)…
Listen to my story of a dark skin man,
Born in Kenya Africa, and not American land,
The Elitists found a puppet, to do their demonic deed,
So they paid his race for president, to put him in the lead!
(His real name Barry Soetoro, now called Barack Hussein Obama)
Well the first thing you know all Sheeple vote him in,
Then they asked the question “Where’s Your Birth Certificate Man?”,
He answered that he needed time to make one up for you,
And though it’s not original, it looks authentic fool!
(More lying and more Obama Deception!)
The next thing Obama did was to do the Devil’s deeds,
To Null and Void the Bill of Rights and Civil Liberties,
To suspect you a terrorist ’till you’re cleared by TSA,
And use NDAA he had signed, to vanish you Globally!
(You can be secretly arrested, and you can not contest it!)
He signed over a hundred laws like NAZI Germany,
Written by Elitists, that you will never be,
Breaking of his Sacred Oaths shows immorality,
And the Military “Pussy Cats” won’t stop his tyranny!
It’s a BAD situation!
Stink’n like Flatulation!
Y’all keep quiet now!
Y’all won’t come back now, Ya hear?!
…
D.A.W.B.
Poem/Lyrics 9, Ver 6
April 3, 2012
April 5th, 2012 at 12:04 pm
This is crazy when I first joined the military honestly believed we were defending are. Constitution well guess I was wrong dead wrong after Obama was elected and d pared war on the constitution
April 6th, 2012 at 2:23 pm
If we are to prevail, we need to approach this at the State level. The federal government has no jurisdiction over the States.
May 4th, 2012 at 2:11 am
Do further research on what is happening and what is going to happen in the U.S. Look up Youtube: FEMA camps, FEMA mass graves, FEMA trailers, Marshal Law, RFID microchipping (666-mark of the beast), HAARP, Bohemian Groves-Alex Jones, and The Governing Stones of Georgia (which states, “Maintain humanity under 500,000,000). America is in trouble! They have been planning for over 60 years for the NEW WORLD ORDER! This will affect every American citizen. We are losing our Constitutional Rights!