Monday, September 27, 2010

Pledge To America: #5

Public Law 107-40 (pdf) was approved on September 18, 2001 and authorized the President to take military action against

those nations,organizations, or persons he determines planned, authorized, committed,or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.

Although this law applied to the Taliban government in Afghanistan, it did not apply to Saddam Hussein's government in Baghdad. Though the Bush Administration strongly implied, and wanted to believe, that Iraq was behind the attacks, the President could not have determined what there was little or no evidence of.

Yet, the war proceeded, with the aid of the joint resolution which made but one, brief, reference to the United States Constitution:

Whereas the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States....

This appears to run counter to Article 1, Section 8 of the U.S. Constitution grantign Congress the power to

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

One may argue that Gulf War II was wise or unwise, constitutional or unconstitutional, but two things are clear: 1) the resolution referred to constitutional authority; and 2) it did not cite specific constituional authority. Nevertheless, and with no apparent grasp of their naivete, Republican leaders in their Pledge to America included within "A Plan to Reform Congress and Restore Trust" a proposal to "Adhere to the Constitution, by which

We will require each bill moving through Congress to include a clause citing the specific constitutional authority under which the bill is justified.

If the GOP proposal gained the force of law, a Democratic or Republican Congress probably would cite constitutional authority. It might distort a clause to cite specific authority or, if more convenient, keep it general, a la the "Pledge" itself. Either way, good luck fighting it in court, where that separation of powers undergirding much of the document might prove a problem.

But maybe this is not what the proposal really is about, anyway. If a bill is aimed at improving the lot of the middle class, workers, or consumers, "a clause citing the specific constitutional authority" would be mandated. Apparently, the GOP believes this point is enough to satisfy the hunger of those of its followers who believe that the Founding Fathers never, ever would have permitted a president such as the one whom we elected.

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