Today’s Lecture: Starting War and Controlling the President 1. So Who Really Gets to Start War...

Today’s Lecture:

Starting War and Controlling the President

1. So Who Really Gets to Start War Anyhow?

2. Is the President Above the Law and How can You Police That?

Class Announcements

Last Quiz

-- Posted!

-- Fewer questions (about 33 or so), 50 minutes

-- 7th day = Friday

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Online Lectures

-- will be current on Thursday night

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Final Exam

-- more fresh questions than usual

(I held back on the quiz)

-- fresh questions will come from all the lectures, not just this one.

-- you have to know all the material

-- final covers the last third of the course (from commerce 7 through Thursday)

Class Announcements

Paper

-- meet with me this week if you are doing it

Class Announcements

Next Cases

-- No more cases to read

Time

Questions?

Review

3 historical epochs in presidential power

-- The framer’s presidency

-- The Emergency/Implied/Delegated Power Presidency

-- Liberal legal culture’s attempt to reign in emergency powers

Review

Presidential Power

-- Summarized the sources of power and showed how the Article II powers were specifically chained in important ways to companion powers exercised by Congress

Sources of Power

PRESIDENT

Article II Powers

Emergency Powers

Implied Article II Powers

Executive Agreements

Executive Privilege

???

Statutory Delegated Powers

Commander in Chief

Conduct diplomacy

Regulate armed services

Rules for capture

Declare war

Approve Treaties

Make AppointmentsAdvice & Consent

State of the Union

Recommend Legislation

Veto

Override Veto

Congress writes legislation

PardonsNot for state crimes and impeachment?

Time

1/18/2007 (C) Copyright Sean Wilson. 2007. 11

The Power to Start War

1. The Commander-in-Chief power is a managerial power

2. The power to start war is not as clear as you may think

(the constitution says …)

Basic idea --

President can command the location of troops, ships, intelligence assets, and has “supreme command and direction” over military activity as though he were (and is) the supreme general or admiral over the forces


“Congress shall have the power to MAKE war“Congress shall have the power to declare war

declare



1. The Commander-in-Chief power is a managerial power

2. The power to start war is not as clear as you may think

(the constitution says …)

-- thought the president would have to have some “shooting capacity” [my words]

-- thought the president could start defensive wars or repel attacks [concept: self defense]

3. The problem with declarations

-- modern warfare begins differently today compared to the European traditions of the 1600s and 1700s

-- declarations are usually formalities?


X x

X X

X x

Nation State -B

X x X

X X

X x X

Nation State -A

The Scope of Defense

Shoot on sight order

Another problem:

1. Trading with the enemy

A. Adams and France

B. Jefferson, Madison and the War of 1812

C. FDR and the Nazis


-- Presidents have committed troops and commenced hostilities in the past without a declaration (claiming self defense)

-- but usually, Congress and the president are not at odds when hostilities break out

-- disagreement is more of a modern phenomenon (Vietnam, Iraq, Kosovo??).



PRES ACTION KIND CONG Appr?

Washington Whiskey Rebellion

Adams Naval War with France

Self defense Iffy

Jefferson War with Pirates Self defense Late

Monroe Taking Florida from Spain (Jackson)

Offensive

Polk Taking California from Mexico

Provoked; Offensive

Yes

McKinley 5,000 troops to China Offensive No

Teddy RooseveltWoodrow Wilson

Caribbean and Latin America

Offensive No

Kennedy Bay of Pigs Offensive No


PRES ACTION KIND CONG Appr?

Johnson 22,000 troops in Dominican Republic

Offensive No

FDR Naval War with Germany Provoked

Truman Air and naval offensive no

Truman Ground forces offensive no

Kennedy Blockade Offensive?? no

Johnson Vietnam Provoked;Offensive

iffy

Nixon Cambodia Offensive No

Clinton Somalia Offensive ??

Clinton Kosovo (bombing the Serbs)

Offensive ??

Reagan Marines in Lebanon Offensive No


4. The War Powers Act

-- allows president to fight on his own without approval from Congress

-- but only for 60 days

-- It says that the President must withdraw the troops unless Congress grants another 60 day window or declares the war

Question:

What might be wrong with this?

Question:

What is the difference between this statute and the original draft

of the constitution that was rejected?



-- Congress’ only power over war is the power of DECLARATION

(the constitution doesn’t speak of a Congress that has total jurisdiction over when fighting occurs).

My view: Congress cannot regulate the details of the war’s management; it can only start (or stop) it with a declaration (or pull funding).

The CIC power is a managerial power that belongs to the president

(Once again, this hasn’t been decided yet!)


Time

Interesting question

Presidents and the Rule of Law

Question:

How can the president make himself/herself LEGALLY above

the law?

1. president can fire the attorney general (Nixon)

2. president has the pardon power

(president breaks law X, doesn’t let the attorney general prosecute, and gets the VP to pardon him)

-- Philip Grossman was selling liquor at his place of business in violation of the National Prohibition Act.

-- In 1920, legal action was taken against him. He was enjoined from selling alcohol

-- He violated the federal court injunction and was found guilty of criminal contempt of court

-- He was sentenced to one year in prison and a $1,000 fine.

--In 1923, President Calvin Coolidge issued a pardon that reduced Grossman's sentence to payment of the fine.

Ex Parte Grossman


Question:

What is this case about?

Facts:

-- The President has the power to pardon for contempts of court

(let’s look at the constitutional language)

Ex Parte Grossman


Question:

How does the court rule?

Ruling:


“The President shall … have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment

Question:

What if it is a state crime?

Question:

Could Nixon be pardoned by Ford if he were

impeached?

Question:

Could Nixon have pardoned himself if he was not impeached?

-- Usually, people receive a pardon for something they have been convicted of

(some people seek a pardon after the Courts have denied all of their appeals)

-- Nixon, however, was pardoned BEFORE he was ever charged with anything, and was pardoned for EVERYTHING that he could have done while in office for six years

-- “blanket pardon”

Nixon’s Pardon


-- Impeachment is a charge that is brought by the House

-- The trial is conducted by the Senate, with a 2/3rds majority to convict

-- The Constitution allows for the removal of the president, vice president, and all civil officers of the United States who are impeached and convicted of:

“Treason, Bribery or other high Crimes and Misdemeanors”

Impeachment Power


Note that this power can be used by the president as well. (See Jefferson and the impeachment of Federalist judges)

-- Impeachment is a charge that is brought by the House

-- The trial is conducted by the Senate, with a 2/3rds majority to convict

-- The Constitution allows for the removal of the president, vice president, and all civil officers of the United States who are impeached and convicted of:

“Treason, Bribery or other high Crimes and Misdemeanors”

Impeachment Power


Note that this power can be used by the president as well. (See Jefferson and the impeachment of Federalist judges)

Question:

How can you investigate the president if he or she is in

control of the attorney general? How would you ever find the

dirt needed to impeach?

• Congress creates the office of the special prosecutor

• one tiny problem: isn’t that an executive function?

Morrison v. Olson


Question:

What are the facts of this case

Facts:

Question:

Is Congress allowed to create an “attorney general” type of

office to investigate the president?

• This does not violate separation of powers

Morrison v. Olson


Holding

-- Began after Watergate in 1978

-- Was criticized by Republicans as being “political” for the Lawrence Walsh investigation of Iran-Contra

-- Was then criticized by Democrats as being “political” for the Kenneth Starr investigation of Bill Clinton

-- The statue expired in 1999 and was not renewed.

History of the Special Counsel


United States v. Nixon


Facts:

-- Nixon’s burglary “crew” is being prosecuted

-- Prosecutors need evidence

-- They subpoena the White House for tapes and other documentary or testimonial evidence

-- president is claiming “executive privilege”



Facts:

-- Nixon’s burglary “crew” is being prosecuted

-- Prosecutors need evidence

-- They subpoena the White House for tapes and other documentary or testimonial evidence

-- president is claiming “executive privilege”

Nixon Aides indicted

The grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The prosecutor and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest.

Question:

What does the Constitution say about this? Does the

President have this power?



Facts:

-- Explain executive privilege

-- secrecy concept inherent in the functioning of counselors and organizations (doctors, lawyers, child counselors, juries, etc.)

-- Presidents since Washington have historically claimed this



(a) executive privilege does exist;

(b) but not in this case

Holding:

Immunity from Lawsuits


Nixon v. Fitzgerald

-- President has immunity from lawsuits for actions taken within the scope of his job [explain]

Clinton v. Jones

-- Sexual harassment case for conduct Clinton committed while being Arkansas governor

-- Clinton only wanted a delay.

-- He couldn’t even get that; the case had to proceed while he was in the White House

Course Page

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Today’s Lecture: Starting War and Controlling the President 1. So Who Really Gets to Start War...

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