Well, I'll be...

[Kuciwalker]

Originally posted by Ramo
That's a fair point (I'd argue that both clauses are relevant), but the contemporary ruling Bas v. Tingy gets more to the heart of the matter.

I'm reading that now.

edit: Bas v. Tingy is entirely concerned with rules about captures on the seas, and the dispute wasn't even about the validity of the law, but whether it was still in effect.

[Ramo]

See Bas. It makes a much stronger case for my argument.

That's a very limited restriction.

Nope, see the Jackson concurrence. It spells out much broader guidelines (which is why court decisions like Hamdi and Hamdan and Rasul, which have nothing to do with private property, have cited them). It's looked at as the ultimate arbritrator for this question.

[Ramo]

The question regarding Ras, was whether or not the limited hostilities Congress declared were equivalent to a declaration of war. And they answered in the affirmative. In the process, they asked whether Congress could so constrain the executive, again answering in the affirmative. And note that early on, you see:

This case depends on the construction of the act, for the regulation of the navy.

I.e. it uses the same language as the clause I cited.

[Kuciwalker]

Black's decision supports my case, IMO. But looking at Jackson's:

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

If Congress passed a law requiring (even as a condition of funding) the president to withdraw troops from Iraq, it would clearly fall in this category. My contention is that the deployment of forces overseas in a war zone is wholly within the CINC power and wholly outside of any Congressional authority (in which case it would pass this test).

Going further, Jackson specifically refuses to consider the president's Constitutional power to deploy troops without the consent of Congress:

I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. 10 [343 U.S. 579, 643] I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

However, Jackson draws the distinction I do between domestic and foreign use of the CINC power:

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history...

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

I'd say that's a pretty good support of my case for exclusive (or nearly so) executive command of actual military operations overseas.

[Kuciwalker]

Originally posted by Ramo
The question regarding Ras, was whether or not the limited hostilities Congress declared were equivalent to a declaration of war. And they answered in the affirmative. In the process, they asked whether Congress could so constrain the executive, again answering in the affirmative. And note that early on, you see:

This case depends on the construction of the act, for the regulation of the navy.

I.e. it uses the same language as the clause I cited.

I still claim that general procedures for handling salvaged ships, even those recovered from foreign aggressors, are very different from specific orders to redeploy troops.

[Ramo]

Congress completely spelled out the rules of engagement. Who can be engaged doing what and where. I'm not talking about salvaging rules...

Anyways, gotta go to work.

[Impaler[WrG]]

Their is no way to cleanly separate 'guidelines' and 'procedures' from 'commands' and 'orders'. Congress could establish a 'procedure' that all our troops our to sent to the US to bake cakes for their home towns every week and this would have every effect of an order to do so. The term procedure implies on ongoing set of rules that are to be will followed until retracted or altered. Orders are in fact weaker as they imply a singular event/action occurance. But you can 'order' perpetual actions and create guidelines which comes with narrow time frames under which they are to be conducted.

[Ramo]

The relevant part of Youngstown:

While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions.

We also know that whenever the courts are faced with the decision of going with Congressional or Presidential jurisdiction over the armed forces, almost invariably (if not invariably) pick Congress. Congress prescribed the rules of engagement to great detail in the situation leading to Bas, and the courts upheld it. And FDR, who had very broad views of executive power, left legislation severely constraining the deployment of armed forces unchallenged. So it's pretty safe to say that the House bill is on solid Constitutional footing.

[Kuciwalker]

So Youngstown says that in some cases (no line is drawn) the President's power to command is overriden by Congress's power to regulate. Mostly, that would be the subset of command that deals with regulations, or conflicts with them. But a regulation is a general rule apply to the conduct of a set of forces, like rules of engagement; it is never an order for a specific unit to perform a specific task (e.g. the 1st Division must withdraw from Iraq).

And every example you've given has seemed to fall well on the regulation side of the line.

And remember that Jackson specifically states the the executive gets a lot of extra room when commanding troops outside our borders.

[Perfection]

How about congress does something worthwhile for a change.

Maybe they could wash some cars or something.

[Ramo]

But a regulation is a general rule apply to the conduct of a set of forces, like rules of engagement; it is never an order for a specific unit to perform a specific task (e.g. the 1st Division must withdraw from Iraq).

The general rule is that combat troops must leave Iraq. Your distinction is arbitrary.

Once again in the situation referenced Bas, Congress said that the hostiles cannot be engaged in a port or on land. This is not substantially different in a legal sense from redeployment. In both situations, Congress proscribed the use of military force in specific areas.

[Kuciwalker]

The general rule is that combat troops must leave Iraq. Your distinction is arbitrary.

I don't think it is. If "government and regulation" means Congress has absolute authority over every detail of the military, the CINC power is meaningless. There is a limit to Congress's ability to micromanage the military.

Once again in the situation referenced Bas, Congress said that the hostiles cannot be engaged in a port or on land.

Congress has the explicit authority to set those rules.

[Kuciwalker]

According to wiki, Congress has only used the regulation clause twice since WWII: in passing the UCMJ and the Federal Tort Claims Act. This seems to support my distinction between general regulations and direct control of the deployment of the military.

[Kuciwalker]

Googling for information on the clause I came upon Joseph Story's Commentaries on the Constitution:

§ 1192. The next power of congress is "to make rules for the government and regulation of the land and naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy... The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.

To me that speaks to the limited extent of the power, that he only comments on the fact that it permits Congress, not the president, to define punishments for crimes committed by soldiers.

[Ogie Oglethorpe]

Originally posted by Oerdin
BTW I recall someone claimed that the election wasn't about Iraq so I will post her polls which say the election was indeed about Iraq.

http://www.salon.com/opinion/greenwald/?last_story=/opinion/greenwald/2007/04/02/iraq_polling/

59% of the American population is now saying they want their Congressman to do more to get the US out of Iraq and would like a withdrawl deadline set.

Election was November IIRC & at that time polling was split at 46/48 (mid Nov.) or 47/47 (October) with margins of error of over 7 points.

Plus interestingly enough when the surveys around that time were a mere 6-7% different in identified polls Repubs at 27% vs Dems at 34% it was dead heated.

Hardly a mandate.

( Mandate something Glenn Greenwald should know quite a bit about.)

Hint if it is a voter mandate that means the voters at the time mandated it not some Johnny come lately poll.

Here is what voters at the time were saying:

Most important item

Importance of Economy - 82% (Extremely and very)
Importance of Culture of Corruption 74% (extremely and very)
Importance of Terrorism - 72% (Extremely and very)
Importance of Iraq - 67% (Extremely and very)
Importance of Illegal immigration 62% (Extremely and very)
Importance of Values Issues - 57% (Extremely and very)

Wow!!!! Iraq was topping the list when the voters were going to the polls or not.....


As for latest Pew results:

(Not saying the Pew poll is wrong as of March 2007 but the split in polled respondants is now 11% in favor of Dem vs. GOP vs historical 4-6% maybe Dems have picked up that much but I doubt it.) In any event it is immaterial vs. claimed voter mandate commentary.

BTW, Thanks NOT! for having me again have to read the barely tolerable screed of Greenwald. I do so love his endearing wit. His overarching contempt and smug superiorty masks his inability to understand a basic point. While he goes on at length over how May and others are dead wrong about the reading of American public's current desires above all else and all other issues a withdrawl from Iraq, he misses the underlying point that, that was never so in November the only time a credible question was asked in conjunction with voting behavior. More to the point, public opinion polls of today are rather inexact means of judging opinion and as such should not be a basis for foreign policy. In fact one could easily argue populist sentiments are exactly what one doesn't want when dealing in the foreign affairs arena as the hot and colds of public opinion would make a nation erratic and unpredictable to the point of national credibility gaps.