The other day, Pres. George W. Bush, who has, following the attack by Osama Bin Laden's Al Qaeda on 9-11, invaded and conquered Taliban Afghanistan, which was the training base for Al Qaeda, and Saddam Hussein's Iraq, declared that an attack is not ruled out on Iran if it persists in its ambition to arm itself with nuclear weapons.
The question thus arises whether the president is given authority under the Constitution to attack a foreign country, or must Congress do the authorizing first, or second.
A conlawprof wrote:
The most troubling point for this list [the Conlawprofs listserv] is that the
prospect of war with Iran ought to be, but is not going to be, a focal CONSTITUTIONAL
question.
Neither Bush's inner circle nor congress nor the judiciary is likely to raise any serious CONSTITUTIONAL objections to a unilateral military strike on our part.
Some of us on this list could do so--but to what effect?
Is it not tragic that the constitution, in practice, provides so little in the way of effective controls on presidential war-making?
Are we really content to have become, in decisive respects, a plebiscitary monarchy?
How did this come about?
Daniel Hoffman
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Plebiscitary monarchy? What is that?
A plebiscite is a vote.
A monarch is a ruler who rules without benefit of constitutional constraint.
Perhaps a plebiscitary monarchy as used here is one where the monarch is voted into office and rules without regard to whether the Constitution gives him certain powers or not.
Is that a fair characterization of the way our presidency has developed?
The answer, perhaps, depends on whether you agree or disagree with the president's exercise of the power he is able to wield.
What constitutional authority permits the president to make war?
While Article I, Sec. 8, Cl. 11 provides that Congress shall have the power to declare war, the president is, per Art. II, the Commander-in-Chief of the Army and Navy. Under the War Powers Act, if he commits U.S. armed forces he must report to Congress within 90 days.
It shouldn't be too difficult for the president's law firm, the OLC, Office of Legal Counsel, the people who brought you Abu Ghraib and aggressive questioning to obtain questionable intelligence, to find legal authority to justify anything the president wants to do.
What's the point of being president if you can't do what you want to do? Correction, what's the point of being a monarch if you can't do what you want to do?
Presidents are constrained by the Constitution, but what if the Constitution doesn't provide a particular constraint that a critic of the president's war policy thinks should exist?
What if the president is not an originalist or a textualist, and argues that conditions have changed since 1787. Today we have nukes, and terrorists, and we don't want to see terrorists with nukes.
As you can see, Iran has cause to be concerned.
Of course if Iran strikes us first, we will holler foul, but we don't think Iran can do that.
The president's main job is to protect the country, even if he has to hit back first, as we like to call a preemptive strike.
The international scene is a little different than the domestic scene. The provisions of our Constitution seem to have far greater applicability in-house than out-house. Had we an efficient international peace-keeping mechanism such as the U.N. was supposed to represent, but isn't, we could go to the U.N., complain about Saddam's misbehavior, misbehavior in the Balkans, and Iran developing nuclear arms. And the U.N. would take care of our concerns.
But we can't. Or we can try but it won't do much good. That's why we invaded Iraq.
So if the president launches a pre-emptive strike on Iran the way the Israelis did on the Muslim Bomb, an air strike on a nearly completed nuclear pile in another country, who is to say he isn't protecting the country?
He'll let Congress know within the next 90 days, in case Congress hasn't tumbled to the fact of the invasion. Congress can ratify or not as it pleases. He may even brief a select few Congressmen in advance to line up a little support. Does this make him a monarch?
It happens that the current world order finds the U.S. as top dog in a world of jackals.
I wouldn't try to put too fine a constitutional point on our biting one of the other dogs who refuses to play by pack rules. It's the law of the jungle, the law of the pack, thanks to Rudyard Kipling's Jungle Books, the first book I ever read, in fact. Funny, the influence of a good writer. When you're the top dog, you snap and bite or find yourself toppled, until we have a better world order.
And that's the way it is, not, perhaps the way it should be in an ideal world, but we don't have an ideal world, do we. We're lucky we have a world at all, and it'll take more than luck if Iran gets the bomb.
Maybe it's good to have a president who seems tone-deaf to the cries of the rest of the world. I'm not sure how far I trust Germany and France to protect me either.
Oh, it's about oil?
Well guess what, oil is oxygen these days. To protect the world order, such as it is, and maintain our position as the leading trading nation in it, we protect the oxygen supply, the oil.
When someone comes along with a better world order, and I'm all for that, I'm afraid we're gonna do what we've gotta do, whether the rest of the world, our trading partners, likes it or not. What are they willing to give up to provide a better brand of leadership?
Other nations had their day, their chance, but the torch has passed to us. Stalin tried, Hitler tried, and now Osama is trying to change the world order in a different direction entirely. I don't want to see that happen.
From now on, I'm imagining Pres. Bush wearing a Special Forces uniform, to help me see more clearly the way things are.
Look at it this way, it's either us or someone else as top dog.
Who would you pick?
