by Jacob G. Hornberger
Yesterday, I wrote about the president’s dictatorial power regarding the waging of war. I pointed out that when it comes to war, the president can now violate with impunity the constitutional provision requiring him to secure a declaration of war from Congress before waging war. This power to violate the Constitution effectively gives dictatorial power to the president, given that he is free to use his military to start wars whenever and wherever he wants.
There are two supplemental points I wish to make here. The first involves the Supreme Court and the second explains why this dictatorial power presents such a grave threat to the fundamental rights and liberties of the American people.
Given the clear unconstitutionality of the president’s violation of the declaration-of-war requirement, why hasn’t the Supreme Court declared it to be unconstitutional? Isn’t that job of the Court?
The Constitution does not expressly delegate to the judicial branch the power to declare congressional laws and presidential actions unconstitutional. In the famous 1803 case of Marbury vs. Madison, however, the Supreme Court held that the Framers intended the federal judiciary to be the final arbiter of constitutionality, given the nature of the judicial branch of government.
The natural question arose: Would the other two branches of government go along with the Court’s ruling? By and large, they have done so. Under our system of government, the Supreme Court became the final decider of what was constitutional and what wasn’t.
With the rise of the national-security state and the Cold War after World War II, however, things changed, at least insofar as the waging of war was concerned.
Keep in mind that prior to that time, it was commonly understood that the president was required by the Constitution to secure a declaration of war prior to waging war. That was why, for example, President Roosevelt went to Congress for a declaration of war against Japan in World War II, even though Japan had already initiated hostilities against the United States.
After World War II, however, presidents decided to simply violate this important constitutional constraint on power. The Korean War. The Vietnam War. The Persian Gulf War. The Afghan War. The Iraq War. And the military attacks on such countries as Grenada, Panama, Yemen, Pakistan, Libya, and others.
No congressional declaration of war in any of them. A clear violation of law — the law that the Framers imposed on federal officials when the federal government was called into existence by the Constitution.
So, why didn’t the Supreme Court declare such wars to be unconstitutional? The answer is: Because the Court knew that the president would never comply with its ruling anyway, and the Court knew that it had no way to enforce its judgment against the president.
Of course, that’s not the reason given by the Court. Over the years, the Court has used fancy technical contortions to avoid ruling on the issue. It would hold, for example, that the person suing for a declaration of unconstitutionality lacked the necessary “standing” to bring the action, but it soon became clear that under the Court’s view no one could ever have the necessary standing, thereby ensuring that the Court wouldn’t have to rule on the issue. Or the Court would say that it was precluded from ruling on “political questions,” ignoring the fact that a “political question” didn’t relieve the Court of its constitutional responsibility to declare an action or law unconstitutional.
It has always been an elaborate cover, one designed to avoid showing the American people and the world that the president of the United States now wielded total power when it came to waging war and that when it comes to this particular part of the Constitution, the Supreme Court is impotent. Its self-declared role as the final arbiter of constitutionality, as declared in Marbury vs. Madison, is no longer operative when it comes to the president’s decision-making power to wage war.
By resorting to fancy legal contortions to avoid ruling on the constitutionality of presidential wars, the Court has been able to maintain the façade that America’s ruler is still operating under constitutional restraints, when in reality, by virtue of the fact that our ruler is now free to violate this critically important part of the Constitution, he now wields the same omnipotent power wielded by foreign dictators.
Why is the power to violate this particular provision of the Constitution so important? Libya provides a microcosm of how this dictatorial power relates to the rights and freedoms of the American people.
The president initiates a war against Libya, a country that has not attacked the United States, thereby once again making the United States the aggressor in a war. Libyan soldiers are killed and maimed. They have friends and relatives and people in the Middle East who sympathize with them. Some of the sympathizers make their way to the United States and retaliate, say, with strikes against the Pentagon and the Capitol.
Needless to say, U.S. officials would immediately label the strikers as terrorists rather than as soldiers fighting a war, one that the United States initiated against their country. In the eyes of U.S. officials, a terrorist is any person who opposes the president’s wars.
That would mean a renewal of the perpetual war on terrorism, a “war” that itself arose out of foreign retaliation for pre-9/11 U.S. aggression in the Middle East. The terror alerts would be elevated. And you know what that would mean: A new round of infringements on the rights and liberties of the American people — more fondling at the airports, more Patriot Acts with sharper teeth, more national-security letters, more illegal spying on Americans, more arbitrary arrests, more torture, more indefinite detentions, more dungeons, more kangaroo tribunals, more assassinations, more centralization of power, more regulation, more bureaucratization, more drug war, and higher spending, taxes, debts, and inflation.
And, of course, if the war expands to include other countries, there is always the ever-present threat of conscription, an unconstitutional power akin to slavery, hanging over America’s youth.
Madison was right: Of all the enemies to liberty, war is the biggest. Obviously dictatorship — that is, the power of a ruler to initiate war on his own initiative — is a close second.
Link:
http://www.fff.org/blog/index.asp
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