The Charlotte News

Sunday, September 15, 1940


Site Ed. Note: The first two editorials are likely not by Cash.

"Perilous Idea", regarding criticism of Wendell Willkie's putative intention to announce deferral to the Senate for a resolution to go to war before asking Congress to declare war, forecasts the War Powers Resolution of 1973 which provides for a "legislative veto" pursuant to the sole power of Congress to declare war as granted by Article I, Section 8 of the Constitution. The President always has emergency powers to act when Congress cannot be called into session quickly enough to act, but short of a true emergency, the President does not have authority to send troops to battle.

Or does he? The argument historically, until the time of the War Powers Resolution in any event, had been that the President's power as commander in chief of the armed forces "when called into the actual Service of the United States", as conferred by Article II, Section 2, implicitly provides the power to send troops into battle, even without a formal declaration of war.

The War Powers Resolution came about in the wake of Vietnam where there never was a formal declaration of war, relying on the President's role, in that case President Johnson and President Nixon, as commander in chief as the source of power to commit troops. (President Eisenhower and President Kennedy sent military advisers to Vietnam but never troops to be engaged in actual combat.)

In the wake of the debacle which was Vietnam, the Resolution of 1973 attempted to clarify and enunciate with particularity the relative powers of the President and Congress with respect to introduction of troops into hostilities, that the Congress has sole power to do so by declaration of war, absent some specific statutory authority provided to the President or a national emergency, such as a nuclear attack or other imminent attack on the United States.

Otherwise, according to the Resolution, the Congress can nullify any such commitment by the President by requiring the President to remove forces committed within sixty days after a required report of the President is submitted to Congress indicating the need for such commitment, a report which must be submitted within 48 hours after introduction of such troops; the Congress then must either declare war or specifically authorize the commitment of the troops within the sixty day period, unless the Congress extends the sixty day period or physically is unable to meet. Failing that, the President must remove the troops so committed either by the end of the sixty days or within thirty days thereafter, provided the President certifies to Congress a need for the additional time to effectuate the removal safely.

The constitutionality of the Resolution has never been tested directly. Does it cede power to the President reserved in the Constitution to the Congress, except in the case of true emergency? If so, that is something Congress may not do even by legislative enactment. Does it sufficiently indicate what an emergency is? Or does it take away from inherent power of the President in his role as commander in chief? Does the limiting language, "when called into the actual Service of the United States", imply that the power as commander in chief only applies to direction of service of troops once the war has been declared by Congress and not in a general sense, such as with our own modern standing military forces, not extant at the founding?

Only one thing is clear: Congress has the power to fund the military and can conceivably curtail the President's power by simply refusing to fund a military operation.

Whether constitutional or not, the Resolution has been obeyed by Presidents generally since its passage. And it clearly provides for the situation of which the editorial expresses concern, that of the true emergency where a deliberative body by its nature simply would not have time to act decisively.

But in the most imminent peril the country has ever faced since the War of 1812 and the Civil War, that of the attack on Pearl Harbor, the President went to the Congress the following day and asked for a declaration of war on Japan--and he got it, nearly unanimously, forthwith.

But that was before the nuclear age. Were such an attack launched today by a sovereign known to be capable of delivering nuclear warheads, it is highly doubtful whether the President would be required by the historical precedent of Pearl Harbor or the War Powers Resolution first to go to the Congress before ordering troops to battle. Inevitably, such would be taken as embraced by the emergency powers recognized in the Resolution and any action by the President under such circumstances likely would be quickly ratified by the Congress in any event. Obviously under imminent threat of nuclear attack, no one in their right mind is going to sit around parsing words and relative powers conferred by the Constitution when seconds literally count on saving the lives of millions. Nothing could be more emergent.

All of which brings us around to a point raised in last night's 2008 vice-presidential debate between Governor Sarah Palin and Senator Joe Biden. In the debate, the question was raised as to whether the vice-president has powers implicit in the Constitution which extend to the legislative process, beyond being merely presiding officer of the Senate and casting tie-breaking votes in that body, the only expressed powers conferred upon the vice-president other than when acting as president in the case of incapacity of the president to serve and perform the functions of office, or in the case of accession to the presidency on death of the president. Otherwise, except for the selection process itself of the president and vice-president, the Constitution is mum on the subject of the power of the vice-president.

Senator Biden expressed his belief that the Constitution is the sole arbiter of the powers of the office and that the vice-president essentially serves as the president directs, but has no legislative function other than to break tie votes in the Senate and to preside when present over the Senate, just as the Constitution specifies.

Governor Palin, however, expressed the belief that there was "the possibility" of a legislative function of the vice-president, that there was some room for interpretation in the Constitution for such a function--an expansive view of the Constitution.

Senator Biden countered that this view, he believes, is a dangerous one, one expressed by the present Vice-President.

Who has the better of the argument? Clearly the vice-president is a part of the executive branch as his selection process was spelled out originally under Article II of the Constitution, though the process was later amended by the Twelfth Amendment. But his only expressed power, short of those while serving as acting president, that of presiding over the Senate and casting tie-breaking votes, is spelled out by Article I which specifies the powers of the legislative branch.

Historically, the Supreme Court has looked to which article declares powers to determine whether they belong to the Congress or the President, such as in the case of President Lincoln suspending habeas corpus, a power the Court held to be solely that of Congress because the power is stated in Article I, Section 9. But no case has ever done the reverse, that is looked to the Article declaring the power to determine whether the vice-president has legislative power by virtue of a power being spelled out under Article I.

First the argument presupposes a dangerous invasion of the doctrine of separation of powers, that the executive branch makes policy and enforces law but that only the legislative branch makes law, while the judicial branch interprets the law principally to determine whether the law is a valid exercise of constitutional power or whether the various branches of the Federal government or the states have exceeded their constitutional powers in acting in a given manner.

The argument devolves to absurdity if one could say thereby, as one ought if the argument were valid, that because the Congress is mentioned in Article II, that article specifying executive powers, as determining the time of choosing electors for the offices of president and vice-president, as well as being required to provide advice and consent to the president in making treaties, then the Congress is a part of the Executive branch. Obviously, that is nonsense, Alice through the looking-glass logic if ever there was such a thing.

Senator Biden not only has the better of this argument, there is no argument to be had. The fact that Governor Palin believes this sort of thing and gives voice to it displays a dangerous lack of understanding of our legal processes in terms of the limitations of power imposed under the Constitution upon the office she would have us vote for her to hold. The Framers wanted a democratic form of government set up in a representative manner, with checks and balances on each of three branches, and strict separation of powers between those branches, to avoid usurpation of power by one or the other, to abolish the prospect of royalty, the former mandate of which they had just finished fighting a Revolution to void. Anyone who fails to understand that much about the American system of law is dangerously out of touch with American history and needs a basic high school level civics lesson in conjunction with an early American history course. They certainly do not belong in government.

Throughout the country's history, populists of various stripes have come along making promises of sweeping aside the sloth of Congress or changing the courts from what they suggest as legislative functions--upholding individual rights and liberties against violations by the government of the Bill of Rights--and molding them by appointments into their proper role as merely adjudicators of the law--serving as a rubber stamp on the state and those with money to do whatever they like and can adequately rationalize--, the man or woman on the white horse promising those sorts of fundamental changes in the process itself, not just specific legislation--that is the establishment of a virtual dictatorship. All such Machiavellian Princes and Princesses--and most have been Princes thus far for obvious reason--do in the end is to cause a lot of upheaval and division in society which leads to loss of spirit and consequent lack of hope and energy necessary to have a productive country. We do not live under a king or a dictator. It is slow and agonizing, this thing we term democracy. No one for very long gets everything they want in legislation. Few get much of anything they want, as often as not. It is the result of a lot compromise. But that is also our protection against despotism, that and the final arbiter of the law, the courts.

Always start with that basic concept, that there are three co-equal branches of government, each serving separate and distinct functions, in analyzing the Constitution, the only document which sets forth as law the basic foundation upon which our government and system of laws operate, and you can't go wrong. Start with the modality that the Constitution is malleable and can be formed by "Joe Sixpacks and Hockey Moms" to say whatever they want it to say by waking up to "Morning in America" one morning, regardless of the Founders' wisdom, and we are lost as a country, devoid of continuity and meaning, susceptible to any transitory wind which comes along on a populist wave on Popular Street masquerading as "Main Street", the "Moral Majority", the "Silent Majority", dividing the country into groups, a nation of men, not laws, individuals who act as designated royalty as long as they are in office, not subject to the dictates of the law but free to use the law by interpretation to chill and dispirit and finally extinguish liberty, able at will to bend the basic law, the foundational instrument itself setting up the framework, to their own ends of usurping and preserving power of will over the rest of us--despotism. That breeds general disrespect for law. It destroys and corrupts our form of government.

Joe Sixpacks and Hockey Moms, for all the cute sounding rhetoric, are not what made America famous. It was our Constitution. And, believe it or not, we are informed that not a single Joe Sixpack or Hockey Mom ever wrote a single line of it--though a few have on occasion tried to interpret it amid the Stars in Bars. We prefer to keep it that way.

If Wasilla, Alaska prefers it another way, they can always vote to secede, we suppose.

It's not that we wish to curtail any of the freedom enjoyed by Joe or Hockey; if anything we'd like to expand it. Yet, we don't want either of them, any more than Mr. Exxon or Ms. Mobil, dictating the laws or the policy of the land to us.

And by the way, that was very clever of Governor Palin, asking Senator Biden at the outset of the debate, so that the microphone and every Joe sitting in a bar could hear, whether she could call him "Joe", so that then she could work in, "Say it ain't so, Joe." Say it ain't so, Governor.

The rest of the page is here.

To morrow... Adios, Farewell.

Tomorrow's Men*

To Be Sure of the Supply We Must Look to the Source

It's a good and timely theme on which Chairman Irving Bullard of the Boy Scout Campaign has based his appeal for funds:

"The survival of a democracy depends as much upon the character of our citizenship as upon our military preparedness. Scouting produces the type of citizenship we need."

Nobody can be found to contend against the great and manifest advantages of Scout training for every American boy. Indeed, it sometimes must occur to Scout leaders to take a leaf out of other nations' books and borrow the all-out method of youth-organization by which the Hitlerjugend and the little black-shirted counterparts in Mussolini-land were mustered in.

What deters us here, more than likely, is the fear that in mass Scouting all individuality would be lost, and that if the State were to be given authority over the country's youth it would turn them out in a common pattern which might make them less American.

And as long as this is the American way, it unavoidably falls upon Americans in their private capacities to give full time and money and helpfulness to institutions like the Boy Scouts. Thereby they will help to perpetuate among boys such principles as--

1. To do my duty to God and my country;
2. To help other people at all times;
3. To keep myself physically strong, mentally awake and morally straight.


Young Democrats Might Read Willkie Between These Lines

Senator Bailey's opinion of the Administration has seemed to vary somewhat according to the length of time before or after a Senatorial election. The difference between the two men's outlooks and policies in domestic affairs is sharp and basically irreconcilable.

Sen. Bailey has expressed himself in bitter criticism of the New Deal--not by attacking its proprietor but by heaping anathema upon some of its handy young men. He has remained on good terms with the President and has fought many of his battles on foreign policy, wherein the two men see largely alike. But the Senator is a queer one for the Young Democrats, hell-bent for a third term, to invite to address their state convention.

In that address--in the advance text of it, at any rate--Senator Bailey had not one good word to say about the New Deal's domestic stewardship. To the contrary, these two significant references would seem to show that his mistrust of it abides:

"We ought to know that we are now in sight of a Federal funded debt of $75,000,000,000 and that this fact is second only in gravity to the possibility of invasion from abroad... Debt is a tyrant... Borrowing postpones the pay-day, but...

"Between Reactionism, on the one hand, and Radicalism on the other, is the broad sure road of our historic American Liberalism and our country's higher destiny. If Radical and Reactionary serve any good purpose, it is as buoys and beacons showing the shoals and reefs of danger to our Ship of State."

We do not mean to impugn the sincerity or the ruggedness of the Senator's convictions--not at all. But if he isn't giving a good imitation of a man modifying his fixed (and entirely rational) disapproval of the New Deal out of consideration for party regularity and a Senatorial election some two years hence, then we misread what he said to the Young Democrats and what he omitted to say--that for the management of domestic affairs, Willkie would be a better choice.


U.S. Control of Materials Makes Japan Furious

That recent moves by the United States have Japan pretty well in checkmate is testified to by all the frothing and threatening in Tokyo--of which the latest chapter is a story that the Japanese plan to make up to Russia.

On the face of it, that would normally be set down as ridiculous. For Russia has always considered it to be to her interest to keep Japan from expanding. And she knows that as long as Japan is threatened by herself in the rear and America in front, she is likely to think twice before attempting to buy off more trouble than she already has on her hands in China.

But anything can happen in these days, as witness the German-Russian agreement of August, 1939. And it is possible that Stalin now considers Germany to be a greater menace to Russia than Japan, and would like to get his hands completely free to deal with Hitler in case the latter wins the war against Britain. And perhaps he is not averse to taking a sock at the United States while he is about it. So it is possible that a Russian-Japanese agreement will actually be reached.

So long as Britain stands, however, that may not greatly disturb us. For as long as the blockade of Europe continues, Japan is absolutely dependent on us for her essential war materials, including oil, iron, steel, copper, automobiles, etc. and she does not have sufficient stocks of any of these on hand to see her through any great adventure she might undertake in defiance of American wishes.

Perilous Idea

President, Not Congress, Must Make These Decisions

One of the so-called Washington news columns reports that Arthur Vandenberg has circulated the story that, at their recent conference, Wendell Willkie told him that he was preparing to promise the people of the United States that he would never ask Congress for a declaration of war unless he had been previously "instructed" by resolution of the Senate to do so.

The story sounds incredible and should not be held against Mr. Willkie until and if he publicly puts himself on record with the pledge. But if it should turn out to be true, what he would be proposing would be a change in the essential form of this Government far more radical than any ever proposed by Franklin Roosevelt, and one a thousand times more fraught with peril.

The fathers of this Republic were thoroughly acquainted with history. And they were well and clearly aware that from the days when the Democratic assembly in Athens made a hash of the Peloponnesian War, which ought to have been won easily, lost Sicily, and ruined the Athenian Empire--that from that time forward there has never been an insistence on foreign policy being successfully made and carried out by a deliberative body.

They had no desire, certainly, to give the Executive unlimited and uncontrolled power even in the field of foreign policy. They gave to the Senate the right to advise on, and to consent to or reject, treaties. And in the whole Congress they vested the sole right to make a declaration of war.

But, as readers of the Federalist papers are aware, they plainly intended that the President should have the general making of foreign policy, and that he should take the leadership and primary responsibility in decisions for war--on the obvious ground that he alone can be in a position to know and judge all the facts, and that in time of foreign crisis clear-cut leadership and not long-winded wrangling is required.

If Mr. Willkie is actually considering any such pledge as this, he is considering the abnegation of the responsibility which normally belongs to the President, and the tying of his hands by giving over that responsibility to a body which was deliberately designed to proceed by a series of jerks and stops. He should avoid it as he would avoid Satan. He could do only one more perilous thing--to come out for popular referendum on declarations of war.

Framed Edition
[Return to Links-Page by Subject] [Return to Links-Page by Date] [Return to News<i>--</i>Framed Edition]
Links-Date -- Links-Subj.