Well, I'll be...

[Ramo]

Congress has the explicit authority to set those rules.

What explicit authority allows Congress to prohibit military force against hostiles in one subset of the planet, but not in another?

[Ogie Oglethorpe]

Originally posted by Ramo
See Bas. It makes a much stronger case for my argument.



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.

For the umpteenth time Jackson concurrence was not official position of the court but merely commentary. His three part test is not considered precedential as the court opinion written by Justice Black not Jackson and even were it so Jackson's 3 part test would say the CINC perogatives (sphere of influence) is more supreme then congress in matters foreign and re: disposition of troops. Kuci nailed it with the Jackson commentary (as you have been amply provided in the past I should add.)

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.

[Ogie Oglethorpe]

Originally posted by Ramo


What explicit authority allows Congress to prohibit military force against hostiles in one subset of the planet, but not in another?

Usually under the auspices of treaty ratification.

[Ramo]

Usually under the auspices of treaty ratification.

What the hell are you talking about? Are you trying to tell me that there was some international law that prohibited land battles in the turn of the 18th century?

His three part test is not considered precedential as the court opinion written by Justice Black

And for the umpteenth time, that's not at all true. Court decisions that are not dicta or the primary opinion have power of precedent if they continue to be cited for related questions. Jackson's Concurrence is the framework under which numerous cases have been decided, such as Hamdi.

Anyways, I quoted the part of Youngstown that was relevant. Please keep up. And Bas establishes that Congress' power to regulate the armed forces includes proscribing military action against an enemy in certain locations and with certain armaments (or lack thereof).

[Ogie Oglethorpe]

Originally posted by Ramo


And for the umpteenth time, that's not at all true. Court decisions that are not dicta or the primary opinion have power of precedent if they continue to be cited for related questions. Jackson's Concurrence is the framework under which numerous cases have been decided, such as Hamdi.

Except in Hamdi it wasn't. Comity between Legislative and the executive (application of the AUMF) was the rational for the decision anything else was not answered by the court. Justice O'Connor wrote the majority opinion and merely referenced Youngstown but not the Jackson test in the courts opinion.

Do try to keep up.

Anyways, I quoted the part of Youngstown that was relevant.

You mean the part that was a mere thought exercise re: how Justice Jackson decided his own thought processes for Youngstown but not necessarily those of the court.

As opposed to his specific recommendations that the POTUS power in the sphere of the foreign affairs specifically and even more specifically as CinC should not be diminished.

Please keep up. And Bas establishes that Congress' power to regulate the armed forces includes proscribing military action against an enemy in certain locations and with certain armaments (or lack thereof).

Cept that the two acts of congress so being interpreted had squat diddly all to do with regulating military actions per se but instead the divisions of prizes and booties so gained from military actions vis-a-vis civilian restitutions,

The controversy involved a consideration of the following sections in two acts of congress: By an act of the 28th of June 1798, (4 vol. p. 154. s. 2.) it is declared, 'That whenever any vessel the property of, or employed by, any citizen of the United States, or person resident therein, or any goods or effects belonging to any such citizen, [37-Continued.]

or resident, shall be re-captured by any public armed vessel of the United States, the same shall be restored to the former owner, or owners, upon due proof, he or they paying and allowing, as and for salvage to the re- captors, one-eighth part of the value of such vessel, goods and effects, free from all deduction and expenses.'

By an act of the 2d of March, 1799 (4 vol. p. 472) it is declared, 'That for the ships or goods belonging to the citizens of the United States, or to the citizens, or subjects, of any nation in amity with the United States, if re-taken from the enemy within twenty-four hours, the owners are to allow one-eighth part of the whole value for salvage, &c. and if above ninety-six hours one-half, all of which is to be paid without any deduction whatsoever, &c. And, by the 9th section of the same act it is declared, 'That all the money accruing, or which has already accrued from the sale of prizes, shall be and remain forever a fund for the payment of the half-pay to the officers and seamen, who may be entitled to receive the same.'

Further no mention was made as to the applicability of congressional power as it was fully understood that teh Bas case was a matter of congressional powers as so detailed explicitly in the constitution:

Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

As for Justice Chase opinion on the matter again you refer to a concurring opinion to be a matter of dicta. Regardless the power of congress to establish limited or other states of war is probably a given. Prosecution of the hostilities and application of those forces however are not the province of the congress.

[Ogie Oglethorpe]

Tell you what I'll grant you Congress's ability to declare various states of war per the 1800 one person opinion/ruling if you grant applicability of the Logan Act circa 1799. I'll take the likes of Kerry and Pelosi doing time and allow you you're burning Bush party.

Heck the Logan act was designed specifically to keep rogue legislators like Logan/Kerry/Pelosi in check.

George Logan (September 9, 1753–April 9, 1821) was an American physician, farmer, and politician from Philadelphia County, Pennsylvania. He served in the state legislature and represented Pennsylvania in the United States Senate. He was a founder of the Democratic-Republican Societies in 1793.

In 1798, he went to Paris to negotiate peace with the French to settle the Quasi-War. On his return, he found he had been denounced by the Federalists, who had passed the "Logan Act", which made it a crime for an individual citizen to interfere in a dispute between the United States and a foreign country.

953. Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

18 U.S.C. § 953 (2004).

[Drake Tungsten]

I think this is the most boring thread ever...

[Ramo]

Except in Hamdi it wasn't. Comity between Legislative and the executive (application of the AUMF) was the rational for the decision anything else was not answered by the court. Justice O'Connor wrote the majority opinion and merely referenced Youngstown but not the Jackson test in the courts opinion.

Do try to keep up.

Sorry, I meant to write Hamdan. Jackson's Concurrence was central to the decision. The point ultimately is that it has been cited plenty of times, and therefore carries a ****load of weight as precedent.

As opposed to his specific recommendations that the POTUS power in the sphere of the foreign affairs specifically and even more specifically as CinC should not be diminished.

Eh? I don't see any specific recommendations in the decision. And the test was just as much a part of the thought experiment as the piece I cited; indeed, the piece I cited clarified the test. The most specific restriction on Congressional jurisdiction that I've heard fo was in Ex Parte Milligan, and even that doesn't get you very far since a specific Congressional action wasn't prohibited.

As for Justice Chase opinion on the matter again you refer to a concurring opinion to be a matter of dicta. Regardless the power of congress to establish limited or other states of war is probably a given. Prosecution of the hostilities and application of those forces however are not the province of the congress.

No one cares what Moore said. Dicta is only whatever courts give a **** about, and Chase's concurrence is pretty damn important. But if you do want a primary opinion, see Talbot. Marshall said bascially the same thing that Chase did. The quasi-war with France was indeed a war, and it's Congress' power to proscribe the activities of the military as it did. Again:

Originally written by John Marshall
In order then to decide on the right of captain Talbot, it becomes necessary to examine the relative situation of the United States and France at the date of the recapture.

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.

The point, once again, is that Congress specified the theatre of hostilities (in the high sea, not on land or in port). This has nothing to do with policies wrt captured forces. And Congress' actions in the quasi-war were not substantially different from the redeployment legislation.

Tell you what I'll grant you Congress's ability to declare various states of war per the 1800 one person opinion/ruling if you grant applicability of the Logan Act circa 1799.

I'd actually like to see Speedy Confession prosecute them with such a retarded law. I wouldn't mind a couple decades of Republican irrelevance.

[SlowwHand]

Democrats are just doing the usual "in-crowd" thing, trying to fit in and be accepted.
Kind of like children who are going through the rebel phase.

[Kuciwalker]

Originally posted by Ramo
What explicit authority allows Congress to prohibit military force against hostiles in one subset of the planet, but not in another?

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

[Kuciwalker]

Originally posted by Drake Tungsten
I think this is the most boring thread ever...

Why would a Frenchman be interested in a US Constitutional debate?

[SlowwHand]

Oooooooh. Drake.

[Ramo]

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

The point, once again, is that Congress specified the theatre of hostilities (in the high sea, not on land or in port). This has nothing to do with policies wrt captured forces. And Congress' actions in the quasi-war were not substantially different from the redeployment legislation.

[Drake Tungsten]

Why would a Frenchman be interested in a US Constitutional debate?

I'm not, hence the "boring" comment...

[Ogie Oglethorpe]

Originally posted by Ramo


Sorry, I meant to write Hamdan. Jackson's Concurrence was central to the decision. The point ultimately is that it has been cited plenty of times, and therefore carries a ****load of weight as precedent.

No it wasn't. It was only referenced in Kennedy's opinion and only Kennedy's opinion, not the courts. And given Kennedy's oft grasping logic, reference his logic re: International tests of humane treatment when determining if capital punishiment is applicable to minors I'ld say the matter is far from settled re: Jackson test being a matter of precendent.

Eh? I don't see any specific recommendations in the decision. And the test was just as much a part of the thought experiment as the piece I cited; indeed, the piece I cited clarified the test. The most specific restriction on Congressional jurisdiction that I've heard fo was in Ex Parte Milligan, and even that doesn't get you very far since a specific Congressional action wasn't prohibited.

Sorry his warning that POTUS power as CinC should not be diminished when it comes to application of forces outside the US boundaries

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.

As for Justice Chase opinion on the matter again you refer to a concurring opinion to be a matter of dicta. Regardless the power of congress to establish limited or other states of war is probably a given. Prosecution of the hostilities and application of those forces however are not the province of the congress.

No one cares what Moore said. Dicta is only whatever courts give a **** about, and Chase's concurrence is pretty damn important. But if you do want a primary opinion, see Talbot. Marshall said bascially the same thing that Chase did. The quasi-war with France was indeed a war, and it's Congress' power to proscribe the activities of the military as it did. Again:

Originally written by John Marshall
In order then to decide on the right of captain Talbot, it becomes necessary to examine the relative situation of the United States and France at the date of the recapture.

The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.

The point, once again, is that Congress specified the theatre of hostilities (in the high sea, not on land or in port). This has nothing to do with policies wrt captured forces. And Congress' actions in the quasi-war were not substantially different from the redeployment legislation.

Why do you continue to argue this point after I already ceded the point that congress likely has the authority to declare limited states of war? Move along you're wasting virtual breath.

What point is not ceded, however, is the conduct of the war, (save for those rules of war negotiated by the executive and ratified by congress with other nation states as part of treaty negotiations. (Geneva covnention etc.))

To that end, you were correct in citing Milligan especially the rather clear guidance given as:

Thus far the discussion has proceeded without reference to the effect of the Constitution upon war-making powers, duties, and rights, save to that provision which makes the President commander-in-chief of the armies and navies.

Does the Constitution provide restraint upon the exercise of this power?- [71 U.S. 2, 18] The people of every sovereign State posses all the rights and powers of government. The people of these States in forming a 'more perfect Union, to insure domestic tranquillity, and to provide for the common defence,' have vested the power of making and carrying on war in the general government, reserving to the States, respectively, only the right to repel invasion and suppress insurrection 'of such imminent danger as will not admit of delay.' This right and power thus granted to the general government is in its nature entirely executive, and in the absence of constitutional limitations would be wholly lodged in the President, as chief executive officer and commander-in-chief of the armies and navies.

Lest this grant of power should be so broad as to tempt its exercise in initiating war, in order to reap the fruits of victory, and, therefore, be unsafe to be vested in a single branch of a republican government, the Constitution has delegated to Congress the power of originating war by declaration, when such declaration is necessary to the commencement of hostilities, and of provoking it by issuing letters of marque and reprisal; consequently, also, the power of raising and supporting armes, maintaining a navy, employing the militia, and of making rules for the government of all armed forces while in the service of the United States.

To keep out of the hands of the Executive the fruits of victory, Congress is also invested with the power to 'make rules for the disposition of captures by land or water.'

After war is originated, whether by declaration, invasion, or insurrection, the whole power of conducting it, as to manner, and as to all the means and appliances by which war is carried on by civilized nations, is given to the President. He is the sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration. 15

During the war his powers must be without limit, because, if defending, the means of offence may be nearly illimitable; [71 U.S. 2, 19] or, if acting offensively, his resources must be proportionate to the end in view,-'to conquer a peace.' New difficulties are constantly arising, and new combinations are at once to be thwarted, which the slow movement of legislative action cannot meet.