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Tuesday February 14, 2012 Unit I: Constitutional Allocation of National Security Powers Class 11: The Power to Authorize the Use of Military Force (IX) 1. Finishing overview of the WPR 2. Case studies: conducting WPR and Constitutional analyses. INTERPRETATION OF JOINT RESOLUTION SEC. 8.

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Tuesday February 14, 2012Unit I: Constitutional Allocation of National Security PowersClass 11: The Power to Authorize the Use of Military Force (IX)1. Finishing overview of the WPR2. Case studies: conducting WPR and Constitutional analyses

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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 
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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 
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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 

Hypo 1 – The President directs Central Command to invade Iran. One month into the fighting, Congress passes a “supplemental” appropriation bill providing the Defense Department with $500 million to pay for expenses related to the conflict.

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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 

Hypo 2 – The President directs Central Command to invade Iran. One month into the fighting, Congress revives the military draft.

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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 

Hypo 3 – The President signs a mutual-defense treaty with Israel, providing that if either state is attacked the other will go to war in its defense. The Senate ratifies the treaty. The next day, Iran attacks Israel, and the President responds by directing Central Command to attack Iran.

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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 

Hypo 4 – Tensions with Iran mount, and Congress passes a statute providing that the President may use all necessary and appropriate force to stop Iran’s development of a nuclear weapon. The next day, the President directs Central Command to attack Iran.

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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

  • Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
  • from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or 
  • from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. 

Hypo 4 – Tensions with Iran mount, and Congress passes a statute providing that the President may use all necessary and appropriate force to stop Iran’s development of a nuclear weapon. The next day, the President directs Central Command to attack Iran.

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INTERPRETATION OF JOINT RESOLUTIONSEC. 8.

(d) Nothing in this joint resolution—

(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties; or

(2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

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President Nixon’s Veto Message

The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country.

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President Nixon’s Veto Message

The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the Founding Fathers in choosing not to draw a precise and detailed line of demarcation between the foreign policy powers of the two branches.

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President Nixon’s Veto Message

The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the Founding Fathers in choosing not to draw a precise and detailed line of demarcation between the foreign policy powers of the two branches.

The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area.

slide16

President Nixon’s Veto Message

The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the Founding Fathers in choosing not to draw a precise and detailed line of demarcation between the foreign policy powers of the two branches.

The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances.

slide17

President Nixon’s Veto Message

The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the Founding Fathers in choosing not to draw a precise and detailed line of demarcation between the foreign policy powers of the two branches.

The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances. They recognized that foreign policy decisions must be made through close cooperation between the two branches and not through rigidly codified procedures….

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President Nixon’s Veto Message

CLEARLY UNCONSTITUTIONAL

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years.

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President Nixon’s Veto Message

CLEARLY UNCONSTITUTIONAL

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them.

slide20

President Nixon’s Veto Message

CLEARLY UNCONSTITUTIONAL

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution--an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation.

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President Nixon’s Veto Message

CLEARLY UNCONSTITUTIONAL

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution--an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation.

I believe that both these provisions are unconstitutional.

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President Nixon’s Veto Message

CLEARLY UNCONSTITUTIONAL

House Joint Resolution 542 would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years. One of its provisions would automatically cut off certain authorities after sixty days unless the Congress extended them. Another would allow the Congress to eliminate certain authorities merely by the passage of a concurrent resolution--an action which does not normally have the force of law, since it denies the President his constitutional role in approving legislation.

I believe that both these provisions are unconstitutional. The only way in which the constitutional powers of a branch of the Government can be altered is by amending the Constitution--and any attempt to make such alterations by legislation alone is clearly without force.

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CONSULTATIONSEC. 3.

The President in every possible instance shall consult with Congress  before introducing United States Armed Forces into hostilities or into  situation where imminent involvement in hostilities is clearly indicated by the  circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in  hostilities or have been removed from such situations.

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REPORTINGSEC. 4.

  • In the absence of a declaration of war, in any case in which United States Armed Forces are introduced--
  • into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
  • into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
  • in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
  • the president shall submit within 48 hours to the Speaker of the House of  Representatives and to the President pro tempore of the Senate a report, in writing, setting forth--(A) the circumstances necessitating the introduction of United States Armed Forces;(B) the constitutional and legislative authority under which such introduction took place; and(C) the estimated scope and duration of the hostilities or involvement.
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CONGRESSIONAL ACTIONSEC. 5.

  • (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
  • has declared war or has enacted a specific authorization for such use of United States Armed Forces,
  • has extended by law such sixty-day period, or
  • is physically unable to meet as a result of an armed attack upon the United States.
  • Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. 
slide28

1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

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1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

1981-86 – US forces conduct exercises across the “line of death” on 7 or 8 occasions without further incident.

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1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

1981-86 – US forces conduct exercises across the “line of death” on 7 or 8 occasions without further incident.

March 1986 – Large US force in the area conducts 375 flights into the contested zone over three days.

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1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

1981-86 – US forces conduct exercises across the “line of death” on 7 or 8 occasions without further incident.

March 1986 – Large US force in the area conducts 375 flights into the contested zone over three days.

March 24 – Libyan shore batteries fire on US planes.

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1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

1981-86 – US forces conduct exercises across the “line of death” on 7 or 8 occasions without further incident.

March 1986 – Large US force in the area conducts 375 flights into the contested zone over three days.

March 24 – Libyan shore batteries fire on US planes.

March 24 – US aircraft destroy the shore batteries.

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1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

1981-86 – US forces conduct exercises across the “line of death” on 7 or 8 occasions without further incident.

March 1986 – Large US force in the area conducts 375 flights into the contested zone over three days.

March 24 – Libyan shore batteries fire on US planes.

March 24 – US aircraft destroy the shore batteries.

March 24 – US forces also attack a group of missile-armed Libyan ships approaching the US force, destroying at least 2.

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1981 – Libyan aircraft fire on two US aircraft that crossed the “line of death”. US forces destroy both aircraft in response.

1981-86 – US forces conduct exercises across the “line of death” on 7 or 8 occasions without further incident.

March 1986 – Large US force in the area conducts 375 flights into the contested zone over three days.

March 24 – Libyan shore batteries fire on US planes.

March 24 – US aircraft destroy the shore batteries.

March 24 – US forces also attack a group of missile-armed Libyan ships approaching the US force, destroying at least 2.

slide37

CONGRESSIONAL ACTIONSEC. 5.

  • (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress
  • has declared war or has enacted a specific authorization for such use of United States Armed Forces,
  • has extended by law such sixty-day period, or
  • is physically unable to meet as a result of an armed attack upon the United States.
  • Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. 
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REPORTINGSEC. 4.

  • In the absence of a declaration of war, in any case in which United States Armed Forces are introduced--
  • into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;
  • into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or
  • in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
  • the president shall submit within 48 hours to the Speaker of the House of  Representatives and to the President pro tempore of the Senate a report, in writing, setting forth--(A) the circumstances necessitating the introduction of United States Armed Forces;(B) the constitutional and legislative authority under which such introduction took place; and(C) the estimated scope and duration of the hostilities or involvement.
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"Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress.”

(The Hostage Act, 1868)

slide48

1996 AEDPA included a “Finding” that “the President should use all necessary means, including cover action and military force, to disrupt, dismantle, and destroy international infrastructure used by international terrorists, including overseas terrorist facilities and safe havens.”