Josh Marshall: Warlord-in-Chief

[babylonsister]

http://talkingpointsmemo.com/archives/053627.php

Warlord-in-Chief
09.19.07 -- 1:40PM
By Josh Marshall

As you can see, we're all over today's developments in the Webb-Warner imbroglio. But I want to zero in on Sen. McCain's (R-AZ) claim that Webb's amendment is not just wrong-headed but plainly unconstitutional. People talk a lot of crap and a lot of trash up on Capitol Hill. But this seems worth addressing. The idea that the United States Congress cannot make laws governing the organization, regulation and laws governing the US military is as plainly ridiculous as it is shocking.

The organization of the branches, the order of ranks and the chain of command, the Uniform Code of Military Justice all come from laws passed by Congress. What McCain must be claiming is that these regulations about lengths of troop deployments amount to de facto limitations on his operational control of the Army. But all sorts of those regs and laws I just mentioned do that in one sense of another. And of course cutting off funds would do the same thing (something the GOP talking points claim would be an appropriate, if ill-advised, assertion of congressional power).

As I said, people spout off about a lot of crap on Capitol Hill. But McCain's claim is part of a increasingly common Republican claim that the president is a virtual dictator on all questions regarding the American military.

[L. Coyote]

1. This just happened with the new AAG appointment too. Same school of legal thought.

Keisler was probably put into the AAG slot to maintain this legal view at DoJ.

More: The NEW Acting Attorney General = Peter Keisler = Who is he? Just a Gonzales CLONE?
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x1839232

Keisler is another Sidley Austin partner, like former WH (and Taylor and Sampson) counsel Brad Berenson, who defended Bush's dictatorial powers.

[donkeyotay]

2. There's another quaint notion: "the American military"

Does he mean the private conglomeration of financial interests that are rapidly becoming America's answer to Afghanistan's warlords? Bush is the warlord-in-chief, and he presides over the warlords whose power that grows on permanent war. Will they ever let us, ever afford for us, to call a stop?

[Beausoleil]

3. Congress regulates the military

http://jurist.law.pitt.edu/forumy/2006/03/army-and-constitution-time-for.php

While the President’s authority as Commander in Chief includes the discretion to control military forces in the field and matters related to the national defense, he does not have the unchecked power to regulate the armed forces or to determine the appropriate troop levels and force composition. The Constitution expressly authorizes the Congress, among other things, to “provide for the common Defense,” U.S. Const., Art. I, § 8, cl. 1; to raise and support armies, see id. § 8, cl. 12, and to “make rules for the government and regulation of the land and naval forces,” see id. § 8, cl. 14. The President, on the other hand, has the authority to see “that the Laws faithfully executed,” Art. II, § 3, and to serve as the Commander-in-Chief, see id. § 2, cl. 2. Given these textual commitments of authority and responsibility, in no sense can it be maintained that the President has exclusive authority over matters related to foreign affairs and national security, in particular maintenance of the country’s armed forces.

Indeed, Congress is constitutionally required to exercise its appropriations authority in respect to the armed forces every two years, and the Congress in modern times has consistently exercised that power. See id. § 8, cl.12. Congressional authority does not end at the decision to raise an army; it embraces as well the discretionary authority to “support” the army—to regulate its size and composition. There is little support in history for the view that, once the Congress called an armed force into existence, the issue of its maintenance would fall within the Executive authority. As Alexander Hamilton noted in Federalist No. 69, the President’s constitutional power as Commander in Chief relates to the command and direction of military forces; it does not extend to “the . . . regulating of fleets and armies.” And the Supreme Court has taken the view that constitutional text means what it says. The Court concluded in Loving v. United States, 517 U.S. 748 (1996), for example, that the Executive has the power to regulate the conduct of members of the military, but he may do so only so long as those regulations do not conflict with Congressional enactments.


Edited to say: McCain needs to familiarize himself with the US Constitution.