Thursday, March 24, 2011

The Commander and Chief of the Armed Forces...When Called into the Actual Service of the U.S.

Concerning President Obama’s actions in Libya with the U.S. Armed Forces, he is bound by the U.S. Constitution to go to Congress and obtain from them a declaration of war before he can act as commander in chief of the armed forces.

Article 1, Section 8, Clause 11 of the U.S. Constitution states, “[t]he congress shall have power to…declare war…”

Article 2, Section 2, U.S. Constitution states, concerning the powers of the President,

"[t]he President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States."

And how is the U.S. Army and Navy called into actual service of the United States, and who calls them into service?  Congress does, by a DECLARATION OF WAR!  No other individual, group or entity has the authority to call the U.S. armed forced into the service of the U.S. except Congress, and Congress cannot do so in any other way except by a declaration of war.  The President cannot call the armed service into action, nor can any other department or entity within the executive branch, nor can the judiciary branch do so.  Only the legislative branch of the federal government-Congress- can do so.  No mere Congressional Resolution, such as the 2001 congressional “War Powers Resolution” can do so.  It must be a formal “declaration of war”, passed by both houses of Congress, such as were the wars of 1812, WWI, WWII, the Spanish-American War, and the Mexican-American War.  All other wars or military operations done without the express declaration of war by the Congress were and are unconstitutional. 

If you go to the following link, you can read the Justice Department's opinion on the military powers of the President, titled, "THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM."

Within this link can be found the following assertions by the Justice Department, concerning the 2011 congressional “War Powers Resolution.”

"Executive Branch Construction and Practice. The position we take here has long represented the view of the executive branch and of the Department of Justice. Attorney General (later Justice) Robert Jackson formulated the classic statement of the executive branch's understanding of the President's military powers in 1941:
         Article II, section 2, of the Constitution provides that the President ‘shall be Commander in Chief of the Army and Navy of the United States.’ By virtue of this constitutional office he has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States. These powers exist in time of peace as well as in time of war.
       Thus the President's responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States. . . . [T]his authority undoubtedly includes the power to dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country."

These assertions, made by the executive branch, including it’s own executive department, the Department of Justice, created by Congress by a legislative act signed into law by President Grant in 1870, mind you, are utterly false and fallacious.  These are assertions for assumption of powers not granted by the U.S. Constitution, made by the executive branch so that it may arbitrarily add to it’s already constitutionally delegated powers.  The President is NOT the commander in chief of the armed forces in both times of peace and war and does not maintain the powers that are included in the title of commander and chief in both times of peace and war.  He is commander and chief of the armed forces, maintaining the powers that go along with that title, ONLY in time of war.  And as explained above, there has been no congressional declaration of war on Libya, and hence, President Obama is not the commander and chief of the armed forces in Libya, nor can he order the armed forces into Libya.  He cannot do so based on a UN sanction or order to do so because the UN is not the sovereign of the United States, nor is it the law-making branch of the United States.  Its enactments are also not the supreme law of the United States, which is the U.S. Constitution.  Therefore, all the UN is  a group of sovereign nations that have voluntarily gotten together with the permission of each of their legislative branches, and all UN resolutions are suggestions to those sovereign nations participating.  Thus President Obama would have to take that UN resolution/suggestion/request to Congress and seek a declaration of war from Congress.  And if Congress did not give said declaration of war, then the consequences of failure to issue said declaration are upon the heads of the people’s representatives in Congress, and not the President.

President Obama also cannot order our troops into Libya based upon the 2001 congressional resolution called the “War Powers Resolution,” precisely because a “resolution” by Congress is not legislation and it is not a “declaration of war.”  Therefore, technically, President Obama is not the commander in chief of the armed forces because the armed forces were never technically called into actual service by Congress because Congress did not issue a declaration of war in 2001 and 2003 for Afghanistan and Iraq.  But, say I concede the point that President Obama can order the armed forces into Libya via the 2001 congressional resolution, which states,

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
        The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.”

The President has said no such thing about Libya being a terrorist nation that has had involvement in terrorist attacks on the U.S., nor has he said anything about Libya harboring terrorist organizations.  He merely sent out armed forces into Libya because the UN requested him to do so in order to protect the civilians of Libya, a noble goal to be sure, but not connected in anyway to terrorist attacks on the U.S. or Libya harboring terrorist organizations.  Thus, even if the 2001 congressional resolution allows President Obama to send our armed forces into Libya, he did not do so for legal reasons as outlined in the 2001 congressional resolution. 

In addition, the President may not, as the Department of Justice asserts, and as the War Powers Act of 1973 states, “command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States.”  The armed forces may not be used or called forth to defend the nation from attack except by Congress, who has the authority to “raise and support armies,” as it states in Article 1, Section 8, Clause 12 of the Constitution.  And the President also may not call forth the militia to protect the nation; that power also lies with Congress, as also stated in Article 1, Section 8, Clause 15 of the Constitution.

Thus, Congress has the authority to raise and support and army in the U.S., but only for two years, unless Congress agrees to provide money for the support of that army again after the two years is up.  Congress alone can call forth the U.S. armed services into actual service of the U.S., upon which time the President becomes the commander in chief.  And the armed forces have to be called forth by a declaration of war.  Any other time of invasion or attack on the U.S., only the militia may be called forth to repel that invasion or attack on U.S. soil, unless a declaration of war is made by Congress, at which time the U.S. armed forces may be called into service by said declaration of war, and the President becomes the commander in chief.  This is what the Constitution states.  And when Congress, the President, or the judiciary branch seeks to deviate from the dictates of the Constitution, they do so illegally and arbitrarily, and thus not only subvert the Constitution, but erase it from existence.  For when any branch of government seeks to arbitrarily alter the Constitution, the Constitution no longer exists, and is but a mere parchment barrier; and the government becomes all-powerful, arbitrary and uncontrollable, in essence tyrannical and despotic.  The government and the people of the U.S. must continue to be governed by the Constitution, and that includes all of the Constitution in its entirety, and not only the parts we agree with!

Thomas Paine wrote, in "Rights of Man," the following concerning the right of declaring war and the expense of it:

"On this question of war, three things are to be considered. First, the right of declaring it: secondly, the expense of supporting it: thirdly, the mode of conducting it after it is declared. The French Constitution places the right where the expense must fall, and this union can only be in the nation. The mode of conducting it after it is declared, it consigns to the executive department. Were this the case in all countries, we should hear but little more of wars."

This is exactly how it is the U.S. Constitutionas well.  The right of declaring war falls upon the same who must bear the brunt of paying for the war; the nation, or rather, the people's representatives in Congress assembled.  Thus, the right of declaring war resides in the people, or to be more specific, it resides in the hands of the people's representatives in Congress.  This is because it is the people who must bear the brunt of the expense of war, thus those who have the right to declare war are those who must pay for the war via taxes, the people.  The means of conducting the war, after it has been declared by Congress, is the President, as commander in chief.

Paine also writes, 
"'I. Men are born, and always continue, free and equal in respect of their rights. Civil distinctions, therefore, can be founded only on public utility.
II. The end of all political associations is the preservation of the natural and imprescriptible rights of man; and these rights are liberty, property, security, and resistance of oppression.
"III. The nation is essentially the source of all sovereignty; nor can any INDIVIDUAL, or ANY BODY OF MEN, be entitled to any authority which is not expressly derived from it.'
In these principles, there is nothing to throw a Nation into confusion by inflaming ambition. They are calculated to call forth wisdom and abilities, and to exercise them for the public good, and not for the emolument or aggrandisement of particular descriptions of men or families. Monarchical sovereignty, the enemy of mankind, and the source of misery, is abolished; and the sovereignty itself is restored to its natural and original place, the Nation. Were this the case throughout Europe, the cause of wars would be taken away.

To conceive a cause why such a plan [a plan mentioned early] has not been adopted (and that instead of a Congress for the purpose of preventing war, it has been called only to terminate a war, after a fruitless expense of several years) it will be necessary to consider the interest of Governments as a distinct interest to that of Nations.
Whatever is the cause of taxes to a Nation, becomes also the means of revenue to Government. Every war terminates with an addition of taxes, and consequently with an addition of revenue; and in any event of war, in the manner they are now commenced and concluded, the power and interest of Governments are increased. War, therefore, from its productiveness, as it easily furnishes the pretence of necessity for taxes and appointments to places and offices, becomes a principal part of the system of old Governments; and to establish any mode to abolish war, however advantageous it might be to Nations, would be to take from such Government the most lucrative of its branches. The frivolous matters upon which war is made, show the disposition and avidity of Governments to uphold the system of war, and betray the motives upon which they act.
Why are not Republics plunged into war, but because the nature of their Government does not admit of an interest distinct from that of the Nation? Even Holland, though an ill-constructed Republic, and with a commerce extending over the world, existed nearly a century without war: and the instant the form of Government was changed in France, the republican principles of peace and domestic prosperity and economy arose with the new Government; and the same consequences would follow the cause in other Nations.
As war is the system of Government on the old construction, the animosity which Nations reciprocally entertain, is nothing more than what the policy of their Governments excites to keep up the spirit of the system. Each Government accuses the other of perfidy, intrigue, and ambition, as a means of heating the imagination of their respective Nations, and incensing them to hostilities. Man is not the enemy of man, but through the medium of a false system of Government. Instead, therefore, of exclaiming against the ambition of Kings, the exclamation should be directed against the principle of such Governments; and instead of seeking to reform the individual, the wisdom of a Nation should apply itself to reform the system."

New Additions: 4/10/11

Concerning the War Powers Resolution, might I suggest you consult Black's Law Dictionary, which is the most used, reputable, and cited legal dictionary in the nation, used and cited by lawyers and jurists/judges alike.  Black's defines a resolution as "a formal expression of the opinion or will or an official body or a public assembly, adopted by vote; as a legislative resolution. Such may be either a simple, joint or concurrent resolution. The chief distinction between a 'resolution' and a 'law' is that the former is used whenever the legislative body passing it wishes merely to express an opinion as to some given matter or thing and is only to have a temporary effect on such particular thing, while by a 'law' it is intended to permanently direct and control matters applying to persons or things in general."

Black's defines a "joint resolution" as "a resolution adopted by both houses of congress or a legislature. When such a resolution has been approved by the president or passed with his approval, it has the effect of a law." Now, president nixon vetoed the 1973 resolution and it was re-passed by both houses, but it was never approved by the president nor passed with the approval of him, therefore it does not have the efect of a law. The only case in which Congress can re-pass something and have it become law even though the pres. originally vetoed it is with statutory law, and not resolutions. That's what I have found according to my research. That's why I've said it's not "law."

According to Article 1 Section 7 of the Constitution, only bills may become law, while it says nothing about resolutions becoming a law. In fact it says in clause 3 that resolutions, orders, or votes of congress may only "take effect" as resolutions, orders, or votes after being passed by both houses and approved by the president or if repassed by 2/3rds of the Senate and the House, not become law.

Now, conceding the point that the 1973 resolution is indeed law, I still consider it unconstitutional because it seeks to legislatively alter the general structure and powers of the federal gov. by transferring a power delegated solely to the legislative branch of gov.,Congress, delegated by the people via article 1 section 8 of the Constitution, to another separate branch of the gov., the executive branch, in the president. This can only be done via constitutional amendment as dictated by the Constitution in article 5. The Necessary and Proper Clause gives Congress the power to make all laws that will be necessary for them to exercise those limited powers given only to them in the Constitution, and to make all laws which are necessary for the other branches of the fed. gov. to exercise their own individual, specific and limited powers given to each of them in the Constitution.

It does not give Congress the power to transfer it's own specific powers to another separate branch of gov. nor does it given Congress the authority to exercise the powers of the other branches of gov. It only allows Congress to make laws that are necessary to make or enforce the exercising of each branch of gov.'s. powers by each respective branch of government those specific and limited powers are delegated to. It also doesn't allow Congress to make any law it pleases and exercise any power it pleases. It can only make necessary laws to make it so they are able to exercise the limited powers delegated to them in the Constitution.

If Congress were able to arbitrarily give or transfer it's own specific legislative powers by legislative act, bill, resolution, or order to another separate branch of the gov., then there would be no need for the amendment process and no such thing as a separation of powers between the legislative branch, the executive branch, or the judicial branch. I think this is best represented by James Madison in his 1799-1800 response to the Virginia Legislature's 1799 resolutions concerning the federal Alien and Sedition Act of 1798.

Madison writes:

"It is affirmed, that this union of power subverts the general principles of free government.
It has become an axiom in the science of government, that a separation of the legislative, executive, and judicial departments, is
 necessary to the preservation of public liberty.14Nowhere has this axiom been better understood in theory, or more carefully pursued in practice, than in the United States.

It is affirmed that such a union of powers subverts the particular organization and positive provisions of the Federal Constitution.  

According to the particular organization of the Constitution, its legislative powers are vested in the Congress, its executive powers in the President, and its judicial powers in a supreme and inferior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments, as has been shown to be done by the alien-act, must consequently subvert the constitutional organization of them.
That positive provisions, in the Constitution, securing to individuals the benefits of fair trial, are also violated by the union of powers in the alien-act, necessarily results from the two facts, that the act relates to alien friends, and that alien friends being under the municipal law only, are entitled to its protection."

This is why I claim that the 1973 War Powers Resolution is not a law, but a mere temporary resolution, and that even if it is a law, it's an unconstitutional law because it violates article 5 of the Constitution and because it breaks the separation of powers that the Constitution is built upon in it's structure and separate branches and their respective and limited powers by illegally transferring a solely Congressional power of calling up the armed forces into service, to the executive branch of the fed. gov.

New Additions, 5/4/11:

Regarding the death of Osama Bin Laden at the hands of the U.S. Navy Seals, ordered by President Obama to enter Pakistan and obtain Bin Laden in his compound, as much as I am relieved at no longer having to live under the threat and terror of knowing Bin Laden is alive and capable of another large and murderous attack on any innocent country or people of the world, according to the information I have provided, what President Obama has done, in ordering the U.S. Armed Forces into a foreign country we are not at war with in order to kill or capture and individual we are at war with is unconstitutional.  If President Obama or supporters of how the death of Bin Laden went down were to assert the constitutionality and legality of the take down of Bin Laden, they would have to do so under the War Powers Resolution of 1973, or under the “War Powers Resolution" of 2001, which allows the President to to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
        The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.”  Given my arguments on the unconstitutionality of the War Powers Resolution of 1973, I will not comment on it if it were assumed that President Obama and supporters of the how he ordered the death of Bin Laden in Pakistan chose the 1973 resolution as their legal backing.  I have proven the 1973's resolutions unconstitutionality.  However, suppose President Obama chose the 2001 resolution, allowing him to preemptively send American troops into any country suspected of terrorist activities or any country an individual suspected of terrorist activities was being harbored or was living; would his order to kill Bin Laden in Pakistan, a country we are not at war with, still be legal?  The answer is no, on the grounds that the 2001 War Powers Resolution is also unconstitutional, because this resolution, just like the 1973 resolution seeks to legislatively give the Executive branch of the federal government a solely legislative/congressional power of declaring war, given to Congress by the people by means of the Constitution, thus violating the separation of powers outlined in the Constitution, which Congress is not at liberty to dispose of or give to another branch of the government by its own will.  Congress must first declare war, by means of an official congressional declaration of war against the country, organization, or individual with whom the U.S. will be at war with before the President can then issue orders for the U.S. Armed Forces to deploy and attack or defend in the name of the United States.  A resolution, be it joint or not, is not a law unless signed by the president into law.  The War Powers Resolution of 1973 was vetoed by Nixon and then re-passed by Congress; this had lead many to assert that it is now law, but it is not, but it remained a resolution, and was never titled an "act" or law, thus Nixon's veto was overruled and the resolution it was re-passed, but only as a resolution and not an "act" or law.  The 2001 joint resolution, called the "Authorization for Use of Military Force Against Terrorists (AUMF)" was signed by President Bush, and did thus become a "law" per say, but it is an unconstitutional law because it gives a solely congressional/legislative power, belonging solely to the Legislative branch, to the Executive branch by means of mere statutory legislation, and not by the constitutional means of a constitutional amendment.

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