Well, I'll be...

[Imran Siddiqui]

Aside from all the boring crap, Ramo is correct on the Jackson concurrence of Youngstown Steel. It's been cited far more than the majority opinion and has been basically been deemed the de facto opinion simply due to later courts treating it as such.

Any law school class on Constitutional law will focus more on Jackson's concurrence than the majority opinion, because the concurrence is far more important in US legal history.

[Kuciwalker]

His concurrence still supports my position.

[Ogie Oglethorpe]

Kuci,

I've gone here before. I've argued Jackson irrelevent and whats more even if not irrelevent it actually supportive of the executive role.

Ramo simply wants the three part test (and whats more a vision of that that starts with greater power of the legislative based upon claims but not historical precedent as a basis for conflicting roles with the execiutive) but similarly refuses to accept the rest of the Jackson opinion that tempers the restriction of any war time powers of the executive when it comes to over seas operations.

A have it both ways and then some arguement.

[Ramo]

Again, Jackson does not specify any restriction on Congress' jurisdiction on the military. The key point to Jackson is that in the broad area of shared jurisdiction, Congress gets the ultimate say. There may be limit to Congressional authority, but it doesn't say what it is. The courts have generally taken this line, but almost invariably rules in favor of Congress whenever a jurisdictional question arises. That's why FDR didn't contest Congress' right to mandate the geographic area of deployment of draftees.

And again, the key points here are the quasi-war cases. Congress prohibited hostilities with France on land and in port (as well as in the high seas in certain circumstances). This is not substantially different from this Congress prohibiting hostilities in Iraq. Therefore, constitutional.

[Ogie Oglethorpe]

Originally posted by Ramo
Again, Jackson does not specify any restriction on Congress' jurisdiction on the military. The key point to Jackson is that in the broad area of shared jurisdiction, Congress gets the ultimate say.

That is an untrue statement. In shared jurisdiction only where the exectutive goes contrary to the stated intention of the legislative it merely says the executives power is at its lowest ebb. That also means that if the executives power is near supreme as is the case in matters of prosecution of war his powers may still be more than any supposed presumptive incidental authority of the legislative.

Further, where shared jurisdiction applies and the legislative has given no instruction or inapplicable/unclear instruction the executive's will is considered paramount regardless.

Finally regardless the legislative can NOT by statute prevent the executive from powers granted via the constitution.

[Ramo]

In shared jurisdiction only where the exectutive goes contrary to the stated intention of the legislative it merely says the executives power is at its lowest ebb.

No, when the executive goes in defiance of the legislative, their power is at its lowest ebb. When both have a reasonable claim to jurisdiction, the tip off goes to Congress:

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 [p638] the Congress from acting upon the subject. [n4] 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.

[...]

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.

Congress has ultimate jurisdiction whenever it's shared. And given the quasi-war cases, specifying the geographical area of hostility is well within Congress' jurisdiction. Therefore, the redeployment legislation is constitutional.

[OzzyKP]

Originally posted by Kuciwalker
Unconstitutional happily Bush can sign it and say he has no intention of following a blatantly unconstitutional law, and the Court will either back him up or call it a political question.

Of course invading a country without a declaration of war from Congress is unconstitutional in the first place. But who's keeping track.

[Drake Tungsten]

Can we appeal this case to a higher court (Imran) and get it over with?

[Ogie Oglethorpe]

Originally posted by Ramo


No, when the executive goes in defiance of the legislative, their power is at its lowest ebb. When both have a reasonable claim to jurisdiction, the tip off goes to Congress:

Again NO!

When sharing jursidiction and in defiance of legislative executive is at its lowest ebb. On that point it is clear. The distinction you fail to recognize and is clearly spelled out as a possibility in Jacksons reasonsing is

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.

He clearly indicates that such instances are possible and that it must be scrutinized under the prism of diminshed ebb but within the context of fullness of claim and consitutional responsibility. There are afterall such things as non equal claims of constitutional responsibility.

The fact that the executive sphere of power may be so overwhelming as to make any incidental claim of the legislative priveledge seconday in nature was something clearly evident in Jacksons analysis as the test provided a modifier to the claimants sphere of inlfuence and claim thereof.

As for the second quote, "imagine that", impinge upon command function such as the provision that congress gets to decide who gets a general's star and appointment.

[Ned]

Originally posted by OzzyKP


Of course invading a country without a declaration of war from Congress is unconstitutional in the first place. But who's keeping track.

We invaded France in 1943 without a DOW by Congress.

In the same or following years:

We invaded Algeria.

We invaded Tunisia.

We invaded Italy.

We invaded Belgium.

We invaded the Netherlands.

We invaded Germany in 1944-45 without a DOW by Congress.

Does this count?

[Ned]

On the main topic, we need fresh air. The Dems should cut off funding and Bush should pull our troops out immediately. Out of Iraq. Out of Kuwait. Out of the Gulf.

Then let's see what happens.

[Kuciwalker]

Originally posted by Ramo
Again, Jackson does not specify any restriction on Congress' jurisdiction on the military. The key point to Jackson is that in the broad area of shared jurisdiction, Congress gets the ultimate say.

Only if you read Jackson very selectively. He's quite clear that he's not speaking to the power of the executive in overseas operations.

[Kuciwalker]

Originally posted by OzzyKP
Of course invading a country without a declaration of war from Congress is unconstitutional in the first place.

Why?

[Ned]

Kuci, I too am still waiting for Ozzy to reply to my questions.

BTW, al Qa'ida DOWed the US during the Clinton years. (I never heard of that, did you?) I think this give the CINC the authority to wage war on al Qa'ida even without a congressional resolution.

Do you agree?

[Kuciwalker]

An NGO can DOW?