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Professor David Golove of New York
University School of Law, together with 21,000 constitutional scholars
wrote a letter to all the members of Congress, because of their concern
that Congress might not fully understand their actual powers. Here are
portions of that interview transcribed from the video on Democracy Now.
This "~" indicates a space in the conversation
"Amy: Explain exactly what
congress can do.
Prof. Golove: There's a kind of
myopia about the constitution which is emanating from the executive branch
during this period of time. The executive branch sees only the
commander-in-chief clause ~
But in fact the constitution
gives vast war-powers to congress. It's very, very explicit in the
constitution which gives congress the power. Congress has the power to
raise money, to borrow money, to provide for the common defense. It has
the power to raise and support armies. It has the power to borrow money -
these are all explicit powers - the explicit power to make rules for the
government of the land and naval forces. It has the power to define
offenses against the law of nations which includes the laws of war. It has
most famously of all, of course, the power to declare war; as well as the
power to issue letters of Mark and Reprisal which is kind of an archaic
practice now, but that dealt with privateers during the Eighteenth and
Nineteenth Centuries-which was a very important form of limited warfare.
It also has the power to make rules of capture on land and sea. All of
these powers are very explicitly granted to the congress and it should be
very clear that the commander-in-chief power is not the only clause in the
constitution which deals with War Powers.
Let me add one more thing which
is that the administration is very myopic-even about executive powers
because even if the president is made commander-in-chief, he is also very
explicitly, in the constitution, enjoined faithfully to execute the laws.
That does not mean disregarding the laws that congress chooses to pass. So
I think it's important to bring a fuller view of what the constitution
itself says, let alone the history of its interpretations to the public
and to the public's officials in congress.
~ remember when the constitution
was passed there was no standing army. The idea of a standing army was
anathema to the founding generations and for many generations after that.
So when congress was given the power to fund the military, to raise and
support armies, then the president wouldn't have had military at his
disposal to use-he would have to go affirmatively to congress to raise and
support an army for him to use in a foreign adventure of some kind; the
check was very, very significant on the president. Today, when there's a
standing military, of a huge size, the power seems to be much weaker
because that invokes taking money from the military when it's actually
engaged in military activity.
Amy: Could Congress pass a law
that says we will do something to stop these soldiers from being sent?
Prof. Golove: Absolutely. As a
matter of fact constitutional power I believe, as well as the other
signatories to the letter: and I think very, very widely in the world of
constitutional scholars and constitutional lawyers: that the congress has
a plenary authority virtually to pass laws that restrict the scope of war
or conflicts in which the president engages. So it's not a question of
constitutional power at all. And when some senators and congressmen that
the reason they might not be able to adopt measures which block or limit
the president's ability to escalate the War in Iraq, and they try to place
this on constitutional grounds-I think this is without any foundation for
that constitutional argument.
Now there may be political
reasons for why they think that's not a good policy for congress to
pursue-but that's a wholly different matter, as to whether they are
constitutionally compelled to let the president do whatever he wants.
Amy: Do you see any promising
movement in congress right now?
Prof. Golove: Well I don't quite
know how to answer that question. Clearly there are resolutions by
prominent members of congress and the senate that are being introduced
now-and remember from a strictly constitutional point of view; these so
far are, are non-binding resolutions-at least the main ones that we're
reading about and hearing abut in the press. If they are non-binding then
they will not prevent the president-even legally. President is clearly
within his constitutional authority to disregard those resolutions and go
ahead with his plans. Congress has authorized this war. It has placed no
limits, legally binding limits, on the number of troops the president can
use in this war: And until they do the president is within his legal
rights to send more troops to Iraq. So the congress has to come forward to
pass a binding-resolution, not just a non-binding resolution.
Amy: And is there an issue on
setting a time limit?
Prof. Golove: That's also
something that's within, I think, Congresses constitutional authority.
Time limits are again, like cutting off funds, they're a treacherous area
for congress because they predict the future-they predict future
conditions. They demand that very definite steps be taken when the
conditions on the ground at that moment aren't entirely clear. So congress
has always, historically, been quite wary of adopting these kinds of... during the Vietnam War, at some point, it became the only mechanism left
for congress-and they did do it!"
Jim Kirwan
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