Re-Cap: A Pretentious President or a Cavalier Congress?

April 7, 2007 | | Comments Off on Re-Cap: A Pretentious President or a Cavalier Congress?

On Wednesday April 4th in room 119 students gathered for the annual American Constitution Society/Federalist Society debate. The topic for this year was, “A Pretentious President or a Cavalier Congress?: The Separation of Powers During Wartime.” Representing the American Constitution Society was Neil Kinkopf, an associate professor of law at Georgia State University, and representing the Federalist Society was Michael Lewis, an assistant professor of law at Ohio Northern University.

Prof. Kinkopf opened the debate by discussing the two competing frameworks for understanding separation of powers conflicts. The first model was a model articulated by Justice Jackson in his concurrence in Youngstown Sheet & Tube Company v. Sawyer, also known as the steel seizure case, where President Truman issued an order to seize all American steel mills in order to prevent a strike. Jackson, in his concurrence, described three situations of presidential power and activity. The first was when the president acts with congressional authority. Here, the president’s power is the highest. Next, was when the president acts without congressional authority, contrary to the will of Congress. Here, the president’s power is lowest. The third is when the president acts and Congress has been silent. Here, the president claims an inherent power to act, and an analysis of that power is necessary. This is the framework used in cases like Hamdi and Hamdan.

The second model, according to Kinkopf, is that articulated by the Bush administration. In this model, categories two and three merge. The underlying theory is that all inherent power is preclusive power, and if the president has power, Congress can’t interfere. This is the approach used to justify the NSA wiretappings, and other similar actions.

Professor Lewis opened by going into detail regarding the Geneva Convention, as applied in the Hamdan case, as an example of how the Convention has been made excessively broad by the Supreme Court, far beyond the means it was originally intended. First, according to Lewis, we must determine what type of war we are engaged in under the Convention. In Hamdan, Justice Stevens recognizes that the conflict with Al Qaeda does not fall under the category of an Article II war, a typical war between two countries. As this isn’t an Article II war, the protections given to defendants are not Article II protections found under Protocol I, but rather, the protections are Article III protections given under Protocol II. To Lewis, this is important, because Article III protections are much fewer than Article II protections. However, the court in Hamdan ignored this distinction, claiming Hamdan wasn’t provided with adequate rights, rights he would only have been afforded under Article II and Protocol I. This then is just one example of how the laws are being stretched and warped to govern more than they were ever intended.

Kinkopf then addressed Congress and the power Congress has to legislate the conduct of wars. According to Kinkopf, Congress has the power to impose limits on war, and to define the nature and scope of what the war will be. Hamdan reinforces this concept, and the Geneva Convention can be used as a tool of statutory interpretation for how we choose to handle situations arising during the war.

Lewis responded by noting that the ways in which war is declared and defined has changed broadly. Authorizations for the use of force are much broader and less specific, because it is recognized that war is largely where presidential power exists and has expanded. Actions by the president in war can be done without specific approval of every action, because during the evolution of the executive branch, Congress ceded to that branch greater power and discretion. Deference should therefore be given to the executive branch, including the interpretation of treaties such as the Geneva Convention.

After finishing, the speakers took questions from the audience. Kinkopf was asked if the Authorization for Use of Military Force (AUMF) put the situation in category one of Jackson’s framework. He responded that we were clearly in category one regarding the war in Afghanistan, but that in regards to things like the NSA wiretapping, there were laws already on the books, such as FISA, governing foreign surveillance. Because of the existence of a prior statute, this would put us in category two for that analysis, because the AUMF didn’t affect laws like FISA.

Kinkopf was also asked about Bill Clinton’s bombing of Serbia, and if this action was outside of presidential powers. Kinkopf responded that Congress has authorized appropriations for the missions, and why would Congress authorize the money if they hadn’t authorized the missions. However, the major distinction between Bush and Clinton, according to Kinkopf, is that Clinton stated explicitly that the War Powers Act applied to him, and that Clinton would not have had unlimited discretion; the ability to bomb whomever he chose to bomb, at any time.

When questioned about the viability of the war powers act, Lewis stated that the law was good, but not very effective, because a president could use troop commitments and strategy as a way to get around the Act. Kinkopf went further, stating the Act was pretty much meaningless from the day it was enacted because Congress has done little to rein in the president.

A question was also raised about the characterization of the conflict as a global war on terror as a reason for expansion of presidential power. Lewis claimed that there is meaning to calling this a war, because different sets of laws apply. A war-like set of laws is needed and desired, because if you are capturing people, attempting to try them is almost impossible in a criminal setting because many are found on battlefields, and it would be difficult to admit all evidence, so we would be forced to let those individuals go. Kinkopf responded with concerns regarding the conflict here at home, and about how it affected U.S. citizens. The law lets the president define anyone as an enemy combatant, who they can then apprehend for extensive periods of time. In addition, the state secrets privilege prevents any accountability or lawsuits, allowing the perpetuation of the problem, and continual infringements on our rights.


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