Pres. Harry Truman made the phrase, “the buck stops here” famous.  Pres. Obama has embraced a similar stance with his often used

Buck Stops Here sign on Truman's Desk

“the buck stops with me” line.  Every president between Truman and Obama have told the people the POTUS (President of the United States) is where the buck stops when it comes to many situations such as natural disasters, man created disasters, economic challenges, environmental concerns, and more.

According to the Harry S. Truman Library and Museum the phrase was embraced by Truman when he received a sign for his desk.  The library website shares the following story;

The sign “The Buck Stops Here” that was on President Truman’s desk in his White House office was made in the Federal Reformatory at El Reno, Oklahoma. Fred M. Canfil, then United States Marshal for the Western District of Missouri and a friend of Mr. Truman, saw a similar sign while visiting the Reformatory and asked the Warden if a sign like it could be made for President Truman. The sign was made and mailed to the President on October 2, 1945. (“The Buck Stops Here” Desk Sign)

Coming out of World War II Americans were ready to embrace this message.  From the time of Teddy Roosevelt’s Bully Pulpit we have been taught our POTUS is the center of government for the people.  “By the postwar era, Washington’s humble term “chief magistrate” could no longer adequately describe an office that in power and responsibility had expanded far beyond Hamiltonian hopes or Jeffersonian fears.” (Healy, The Cult of the Presidency, 2008, p. 79)

History shows presidential power increased through usurpation during times of war.  Both Lincoln and Franklin D. Roosevelt knew many of their decisions were beyond their constitutional authority.  The framers of the U.S. Constitution placed most of the power in the Legislative Branch while far less power was conferred upon the Executive Branch.  Perhaps they embraced the ides of

John Locke

executive prerogative during emergencies as supported by John Locke.

But since a rational creature cannot be supposed, when free, to put himself in subjection of another, for his own harm; (though where he finds a good and wise ruler, he may not perhaps think it either necessary or useful to set precise bounds to his power in all things)  prerogative can be nothing, but the Peoples permitting their Rulers, to do several things of their own free choice, where the law was silent, and sometimes too against the direct Letter of the Law for the publick good; and their acquiesing in it when so done… (Locke, Two Tretise on Government, London, 1821, p. 332)

Truman began a precedent of sending troops into harm’s way without requesting Congress to declare war by sending troops to the Korean Peninsula.  On the heels of this usurpation Americans were faced with a threat of attack during the Cold War.  Eisenhower, Kennedy, Johnson, and Nixon all helped the Executive Branch gain more power.  By 1973 the power of the presidency had grown to a point Arthur Schlesinger, Jr. wrote a book entitled The Imperial Presidency.  With the advent of Watergate and the resignation of Pres. Richard Nixon many felt the usurped powers were no longer going to be allowed.  Congressional authority briefly came back into vogue.  People lost hope there was one man they could turn to and rely on to solve their daily needs.  Constitutional checks and balances were nearly restored when it came to the Legislative and Executive Branches of the federal government.

We then experienced the Iran hostage crisis and the rise of Ronald Reagan’s appeal to patriotism.  International crisis has always been a key ingredient for Americans accepting an abuse of presidential power.  A charismatic leader combined with an external threat equaled a resurgence of the Imperial President.  “What began as emergency powers temporarily confided to presidents soon hardened into authority claimed by presidents as constitutionally inherent in the presidential office; thus the Imperial Presidency…The rise of the Imperial Presidency ran against the original intent of the Constitution.”  (Schlesinger, The Imperial Presidency, 2004, p. x)

The original intent was to distribute power with the Legislative Branch, the people’s branch, having responsibility for war,appropriations, the regulation of commerce, and more based on the limited powers agreed upon by the several states.  States were to retain power over daily concerns for life, liberty, and property based on the agreements between the citizens of each state and their governing officials under their state constitutions.

Today there are many crises both internationally as well as nationally.  The growth of usurped power through appointment of czars, executive orders and signing statements shows a systemic challenge growing between the Executive Branch, the Legislative Branch, and the Constitution.  Modern imperialism began in the latter days of the Clinton administration, elevated to new levels with Bush, Cheney and the War on Terror, and is rising to even greater heights under the Obama Administration.

As Gene Healy writes, “If the public expects the president to deal with all national problems, physical or spiritual, then the president will seek – or seize – the power necessary to handle that responsibility.  We’re right to fear the growth of presidential power.  But the Imperial Presidency is the price of making the office the focus of our national hopes and dreams.” (Healy, 2009, p. 3)

This belief by the people will become the path progressives will accept for the final destruction of constitutional order in our country.  Today we the people are so accepting of the notion it is the president’s job to handle all areas from the economy to health care; from natural and manmade disasters to the defense of democracy around the world we do so without notice.  Conservatives are as willing to turn to the president as liberals are.  A self-governing society cannot sustain liberty if it willfully, unconsciously gives away personal responsibility to a single person or the few people a president says society should trust.

The buck cannot continue to stop with the president if we the people are to maintain freedom under a federalist republic.  As long as we embrace the notion we are a representative democracy and our federal government, especially our president, should do more for us than our state, local, or personal government we are doomed to repeat histories’ lesson.  Representative democracy gives way to despotic rule and does so often to the applause of the many despite the fears and resistance of a few.  To restore federalism the buck stops at the lowest level possible.  In many instances that will mean the buck stops with you and me.  It is time for us to decide; where should the buck stop?

Gary Wood is the State Chapter Coordinator for the Utah Tenth Amendment Center. He works with the Utah 912 States’ Rights Coalition and Hosts March of Liberty Radio every Saturday and Sunday evening at 7pm EST on Blog Talk Radio. He is a lifetime member of the VFW among other groups but more important to him is his title of grandpa. “According to Thomas Jefferson the 10th Amendment is keystone to our Constitution. We must restore the keystone so we can secure the blessings of liberty for our posterity, a goal of our Founders and a goal we must still strive to achieve.”

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

If the finest hour for the people of East Germany occurred with the fall of the Berlin Wall on November 9, 1989, one of the lowest moments occurred just over one month before.  On October 7, 1989, East German leader Erich Honecker hosted all of the Communist dictators of the Warsaw Pact – including Soviet Premier Mikhail Gorbachev – in East Berlin to celebrate the 40^th anniversary of the independent East German state.  By this point, East Germany, like the other nations of Eastern Europe, teetered on the precipice of bankruptcy and economic disaster.  Nevertheless, the event had all of the trappings of a typical Communist get-together – a military parade and much pomp and circumstance.  That night, however, the members of the East German Communist Youth Group, the Freie Deutsche Jugend, marched in a torchlight parade in front of Honecker, Gorbachev, and their Communist brethren.  These were the cream of the Communist Party’s younger generation and the future of East Germany.  All of a sudden, quietly at first and then building to a crescendo, the young people began chanting “save us, Gorby, save us!”  It was truly a pitiful sight.  A lifetime of Communist dictatorship had done its job well.  None of these young people had any sense of pride, self-reliance, or confidence.  Faced with East Germany’s insurmountable problems, they begged the dictator of the nation that held its boot on the neck of their own for over 40 years to “save them.”

While this event shows the pathetic state of affairs beyond the Iron Curtain, is it that different from the attitude may Americans have towards their President?  In recent weeks, as the oil crisis in the Gulf of Mexico continues, politicians, pundits, and citizens alike have excoriated President Obama for his “failure” to curb the leaking pipe in the Gulf and to stop the flow of toxic crude oil into the water and onto the beaches and marshlands of the Gulf Coast.  Former Vice-Presidential candidate Sarah Palin’s response is typical of the outrage:  “The fundamental problem at the core of this crisis is a lack of responsibility.  There’s a culture of buck-passing at the heart of this administration that has caused the tragedy of a sunken oil rig to turn into a potential disaster.”  House Republican Conference Chairman Mike Pence has stated that “People in the Gulf of Mexico deserve better” than Obama’s “response.”  Even James Carville, the well-known Democratic pundit, has put Obama in his crosshairs:  “The president doesn’t get down here in the middle of this… I have no idea of why they didn’t seize this thing . . .  I have no idea of why their attitude was so hands off here.”

If you needed any proof of the fact that the two major political parties are out for themselves and lack even a shred of principle, here is the evidence.  Republicans, who are supposed to be the party of “small government,” have dropped their small government principles to rage at President Obama for not being active enough simply as a “tit-for-tat” for the equally pernicious Democratic criticism of President Bush during Hurricane Katrina.  It hearkens back to that day in East Berlin – its as if everyone is crying out for President Obama to “save us,” and yet nobody stops to think about whether this crisis has anything to do with the President’s job description.

While many ideas from the Founding era can be said to be up for debate, it is indisputable that the words “save us” never entered the thoughts of the Founders when establishing the office of the Presidency.  In the Constitution, the Presidency is established in Article II, an Article which is dwarfed in size by its companion, Article I, which creates Congress.  The powers granted to the President in Article II are actually very limited.  They are:

  1)  The power to be commander-in-chief of the military;

  2)  The power to require the written opinion of officers from the executive departments;

  3)  The power to commute sentences and grant pardons;

  4)  The power to make treaties (with advice and consent of the Senate);

  5)  The power to nominate ambassadors, public officers, and judges (with advice and consent of the Senate);

  6)  The power to issue recess appointments for public officers and judges;

  7)  The power to convene Congress when not in session;

  8)  The power to adjourn Congress when it cannot agree on time for adjournment;

  9)  The power to receive foreign ambassadors and ministers;

10) The power to commission officers of the United States.

Added to these powers are two duties:  1) The duty to give to Congress, “from time to time,” information on the state of the Union, and 2) The duty to ensure that the laws are faithfully executed.  Finally, Article I, obviously, also gives the President power to assent to or veto laws passed by Congress.  These powers can be boiled down into two broad generalities – foreign affairs and enforcing Congressional enactments.

The President was to be America’s “first officer,” not its savior.  In other words, the President is not there to ease the pain of individual citizens or groups of citizens when things do not go their way. 

Americans should take an example from Grover Cleveland, one of the most forgotten presidents on our history.  The reason why he is so unknown is because he espoused a theory of strict limitations on federal power, and presidents who resist the urge to use federal power to solve every problem tend not to end up in the history books.  In 1887, a horrible drought hit Texas.  The drought destroyed the crops of many Texas farmers, thereby threatening their livelihoods.  In response, Congress passed the Texas Seed Bill, a statute which appropriated over $10,000 to purchase new seed for these beleaguered farmers so that they could re-plant their crops and avoid financial ruin.  President Cleveland, famously and in a principled, constitutional stand, vetoed the bill.  His message to the House of Representatives explaining the veto is worth quoting at length:

It is represented that a long-continued and extensive drought has existed in certain portions of the State of Texas, resulting in a failure of crops and consequent distress and destitution.

Though there has been some difference in statements concerning the extent of the people’s needs in the localities thus affected, there seems to be no doubt that there has existed a condition calling for relief; and I am willing to believe that, notwithstanding the aid already furnished, a donation of seed-grain to the farmers located in this region, to enable them to put in new crops, would serve to avert a continuance or return of an unfortunate blight.

And yet I feel obliged to withhold my approval of the plan as proposed by this bill, to indulge a benevolent and charitable sentiment through the appropriation of public funds for that purpose.

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.  A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune.  This has been repeatedly and quite lately demonstrated.  Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.

In other words, Congress and farmers in Texas cried out “save us, Grover, save us,” and President Cleveland eloquently declined.  His rationale, as stated above, was simple – the President of the United States is given authority to exercise powers in the service of the whole people of the United States, but not to involve himself in every unfortunate incident that plagues parts of that whole.  The oil spill in the Gulf of Mexico, while tragic, is similar to the plight of the Texas farmers in 1887.  That incident was not President Cleveland’s responsibility – nor is the oil spill President Obama’s.  The tendency to give the President a hand in everything is a substantial cause of the federal government trampling on state prerogatives.

The people of the Gulf Coast region are suffering greatly from this tragedy.  Many will likely lose property, others their livelihood.  BP – which is actually responsible for the mess – will have to clean up the oil, but the responsibility for rebuilding the Gulf Coast will fall to the people of the Gulf Coast and to their State governments, which are far closer to the disaster than the federal government and can better assist in the recovery.  You may find this reality harsh.  But it is actually just the opposite.  It reflects the belief that the people in this country have the ability and the fortitude – with the help of their neighbors, family and friends – to bounce back.  It’s a testament to the “sturdiness” of their character. 

East Germany’s collapse was imminent when its citizens begged Gorbachev to “save us.”  The proper response to the Gulf oil crisis is not “save us, Obama, save us” and to criticize the President for not doing so quickly enough.  Rather, the proper response is to say, as citizens, that we’re going to band together and beat this crisis without complete reliance on the federal government.  That’s what Americans do when the going gets tough.

Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006. Since then, he has practiced as a labor and employment attorney, representing management and employers, in Pittsburgh. He has always been a very strong advocate of states’ rights and decentralized government. He believes that Thomas Jefferson was absolutely right — government power is not to be trusted, and the more centralized government power becomes, the less it is to be trusted.

The framers of the Constitution attempted to balance the power of the President as commander-in-chief with that of Congress, the representatives of the People.

Article II, Section 2 of the Constitution gives to the Executive Branch the command of the nation’s armed forces, while Article I, Section 8 gives to the Legislative Branch the power to decide when the United States goes to war.

Presidential candidate, Bob Barr has taken a strong stand in support of the Constitution in a recent post on his website:

“Former Secretaries of State James Baker and Warren Christopher have proposed a new statute to encourage the president and Congress to cooperate in going to war. But the Constitution already sets forth a clear rule: Congress, and only Congress, is tasked with declaring war,” explains Bob Barr, the Libertarian Party presidential candidate. “Absent exigent circumstances, like defending against a surprise attack, only Congress has the authority to take America into a conflict.”

When crafting the Constitution, the founders weighed the individual will of the Executive against the deliberative function of the Legislature, whose constituents would bear the full costs of any war.

Thus, the framers deliberately separated the powers of declaring and waging war; they confined these powers in such a way so as to thwart the tyranny of kings.

Despite being known as one of the greatest champions of centralized power of the times, even Alexander Hamilton felt that the President must generally bow to Congressional directions in times of peace and also in times of war. He stated this clearly in Federalist #69:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces.; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies – all which, by the Constitution under consideration, would appertain to the legislature.”

Our nation’s founders were far from perfect, and at times, inconsistent and unjust; but, on the powers of war, they were unwavering, and their principles were sound.

Barr again shines in his recognition of the separation of war-declaring vs war-making powers:

“presidents must acknowledge that being military commander-in-chief does not entitle them to take the nation into war. Rather, they are to fight only conflicts authorized by Congress,” Barr observes. “At the same time, Congresses must be willing to confront tough issues, rather than leave them for the president. Legislators have no higher responsibility under the Constitution and to the voters than to decide when Americans must fight abroad.”

One obvious reason for dividing the war powers was to prevent such massive powers from being placed in the hands of one person, the President.

The framers understood that, throughout history, rulers of nations worldwide had begun wars strictly on the basis of international politics or personal desires.

They clearly understood that rulers would often get the urge to remove foreign public officials, or dictate the policies of foreign nations, and that such urges are dangerous to liberty, no matter what the reason.

The reason for entrusting the Legislature with the power to declare war was to ensure that the People would be involved in the decision as much as was physically possible.

What the Framers did not imagine was a weak and ineffectual Congress that failed to claim its rightful authority in deciding when the nation would go to war, or a power-hungry President that wouldn’t refuse an extra-constitutional transfer of such power from Congress.

By rejecting the advice and the rules laid down by the founders and early Presidents, our recent leaders have gone so far astray from warnings against entangling alliances, that the founders would hardly recognize the government they created.

Policing the world and “spreading democracy” is not our calling. Additionally, no such action is permitted by the Constitution.

Michael Boldin [send him email] is the founder of the Tenth Amendment Center

Copyright © 2008 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

If there were ever a time where the founding principle of America, as a nation, is justified again, it is the issue of state sovereignty.  The notion of multiple governing entities, contractually united for a few common and limited purposes, where all else are functions of each state, is apparent in the campaign of 2008.

Here’s why.  On the one hand, we have a young, highly intellectual, quick-thinking, ambitious, good-looking man seeking to be our new compassionate socialist dictator running for office against an old airhead.  The old airhead, easily manipulated because of his arrogance, self-centeredness and vacancy of intellect, is always in a corner defending and speaking without factual knowledge.

McCain assumes any attack from the other side against his people is immediately correct, and his reaction is to condemn his people before checking the facts.  He also tries to justify his older positions, which have been shown unjustifiable, by compromise, as he always seeks to compromise with his opposition even before debating on an issue.  This is driven by a fear of looking bad; a weakness the other side orchestrates.

The young man, Obama, wants everyone to simply hand over his or her liberty to him.  He says he will watch over it and hand back that which he decides is needed from time to time, but use the rest in order to better manage the nation and its economy, all of which he wants us to accept that he is capable of doing.

If we were still holding onto the principles of the founder’s of America, maintaining the position of sovereignty of each state, then the damage done by people like Obama and McCain would be limited to a state, as was the ruin of Louisiana by Huey Long.

The limits placed upon the central government would allow little damage by men like these tinkering as they plan to do.  After all, the central government’s only role was to protect our nation and make sure one state did not intervene in the business of another.

We dismantled those principles under Lincoln, and continued the march to dictatorship ever since, and now we have Obama who will run the whole shootin’ match as he sees fit, because we love him and want change.

The problem, of course, is that most of what these candidates talk about doing is simply not authorized by the Constitution.

LaVarr Webb at the Deseret News makes the case that because of this, no matter who is elected, they’re doomed to failure:

Whoever wins, the next president is doomed to fail in many ways. The reason is that the job description for president has become impossible. Any president is set up for failure because the expectations of the job are so enormous as to be unattainable.

There’s no doubt about it.  When presidents make promises far beyond the scope of their constitutional authority, it should be quite clear that they’re only trying to win a popularity contest, and just cannot succeed at all (or even just a little) of what they promise.

LaVarr goes on to explain further:

Under the system of balanced federalism created by the founders, the job of president was doable. The role of the federal government was supreme but limited to specific duties delegated to it by the Constitution. A president could successfully fulfill the responsibilities of his office.

The states were protected from a potentially ambitious and overbearing federal government by the 10th Amendment, reserving any power not specifically delegated to the national government to the states and the people. It is part of the Bill of Rights, designed to defend the basic rights of the people. States refused to ratify the Constitution until that amendment was in place.

The Constitution was written under what’s called “positive grant.” What this means is quite simple. The federal government is authorized to exercise only those powers which are positively granted to it by the Constitution. If a power is specifically listed in the Constitution, the federal government can do it. And, vice versa.

This principle was so important to the founding fathers that they codified it in law as the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Simple, right? Well, you’d think so, but it’s in the nature of government – and politicians – to ignore any rules that limit their power. And that’s why we see both the 10th Amendment, and the entire Constitution, becoming more and more irrelevant in political discussions in Washington D.C.

Anyone paying even the least amount of attention to federal government can see that these principles are, as Webb puts it, “dead and gone.”

What’s the solution? Webb hits the nail on the head:

The nation’s complete capitulation in allowing and expecting the federal government to solve every problem facing society is a disaster. The solution to many of the toughest problems is the opposite of more federal intervention.

The solution is to get the gridlocked, ultra-partisan Congress and the incredibly expensive and massive federal bureaucracy out of the way and allow states and local government to keep their money at home and tackle the problems according to local circumstances.

Pretty simple.  If only the federal politicians weren’t so interested in expanding their own power at the expense of your liberty.

Watching Keith [Olbermann] just now, I heard him mention Antonin “Nino” Scalia’s dissenting opinion from today’s ruling in regards habeas corpus rights for detainees.

The lowlight of Justice Scalia’s opinion was the paragraph:

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”

While others will surely spend countless hours and buckets of ink and pixels debating the merits or madness of the second sentence, I’ve a bone to pick with the first.

Scalia has, over the years, demonstrated a profound lack of understanding of the U.S. Constitution and the role of the Supreme Court. His devotion to the concept of “originalism” selectively ignores the Ninth and Tenth Amendments, key components of the document as “originally” ratified. The codicil to the majority opinion in Bush v. Gore, in which the nation’s ultimate appeals court, where all legal precedent is finally decided, declares that the judgment in that case is not, in fact, legal precedent.

I have come to expect little in the way of Constitutional wisdom from Justice Scalia.

But he is not alone in the delusion he propounds in the first sentence of today’s killer graf. Nearly every candidate, commentator and speechifier will, at convenient times, refer to the President of the United States as “the nation’s commander-in-chief” or “our commander-in-chief.”

Article II, Section 2 of the Constitution begins:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

This is a very specific delineation. When broad powers are claimed for the President, many rightly so, in his role as “commander-in-chief,” these broad powers do not automatically apply to those persons not in the armed forces of the United States. Where they exist at all, they apply to the men and women of the uniformed services of the Army and Navy, the state Guards and other armed services.

The president not only is impotent to hold me without allowing me to demand the charges against me, he is impotent to search or seize my person, goods and papers without a warrant showing probable cause. He is enjoined from quartering his armed troops on my property.

In point of fact, the president of the United States cannot do a damned thing to me that the Constitution does not specifically allow him to do. And this limitation to his powers, embodied in the purposefully broad Tenth Amendment, holds because I am not a member of the armed forces.

In short, the president is not my commander-in-chief. Odds are, he is not yours, either. He is not Antonin Scalia’s commander in chief, not Hillary Clinton’s nor Chris Matthews’.

For us, the citizens of and visitors to the United States, he is the Chief Executive, pledged to take care that the laws of the United States are faithfully executed. He is not our commander. He is our servant.

I hope I’ve not made too much of a much here, but this anointing of the Chief Executive with unlimited powers over all citizens, like some ancient Imperator can’t be reversed solely by Court decisions. It must be dismantled in the minds of us, the citizens.

And refusing to accept the rule of a commander when you don’t wear the uniform is a reasonable place to start.

More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department’s Office of Legal Counsel — the man who gave us the administration’s horrifyingly narrow definition of torture. As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president’s power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander-in-chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.

This broad interpretation of executive power and the president’s commander-in-chief role would make the nation’s founders jump out of their graves. Purposefully, the Constitutional Convention enumerated the large number of Congress’s powers in Article I, and gave most powers related to defense and foreign affairs to the people’s branch.

In particular, the war power was given to Congress. The chief executive, whose powers were enumerated in the much more brief Article II, was given the commander-in-chief role, but this was intended narrowly, only as commander of U.S. troops on the battlefield.

Instead of declaring war, which has fallen out of fashion, the Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaida overseas but deliberately omitted domestic activities from that authorization.

Democrats and Republicans alike declared that they were not endorsing a broad expansion of the president’s authority as commander-in-chief.

An important example from the nation’s infancy shows how narrowly the founders regarded the president’s role as commander-in-chief. During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports. The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush’s supposed intrinsic authority to seize all oceangoing ships without congressional authorization.

In 1952, President Truman, the first imperial president, seized the steel mills under his alleged “inherent power” as commander in chief — supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.

By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman’s executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander-in-chief of the armed forces but not the country.

Yoo’s assertion that Congress has no right to pass laws that impinge on the president’s claim to a broad interpretation of his role as commander-in-chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.

Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic — where the rule of law should be king — crises and wartime are exactly when people’s rights are most likely to be endangered and when safeguards are especially needed.

Even more tragic and dangerous than the quagmires of Iraq and Afghanistan have been President Bush’s usurping of power from the other two branches of government and the creation of the “hyperimperial” presidency.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books, The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

© 2008 – Ivan Eland – All Rights Reserved

The war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress — not the president — shall have “the power to declare war.”

Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a “declaration” by Congress.

Nor were the feeble, post-factum congressional resolutions of support of the Iraq invasion — in 2001 and 2002 — adequate substitutes for the formal declaration of war demanded by the founding fathers.

This is the essence of the unconstitutionality of the war in Iraq – and of every war American politicians have waged since World War II – the last time there was a Constitutionally-mandated declaration of war.

POSITIVE GRANT

The Constitution was written under the principle of “positive grant.” This means that the federal government is authorized to exercise only those powers which are specifically listed in the Constitution. This was so important to the founding fathers that they codified it in law as the Tenth Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As Cuomo made clear, Article I, Section 8 of states that Congress shall have the “power to declare war.” Nowhere in the Constitution is the Congress given authority to transfer that power to any other person or branch. And, nowhere is the president given the power to declare war either.

AUMF. AN UNCONSTITUTIONAL TRANSFER

In 2002, Congress passed the “Authorization to Use Military Force” (AUMF). Although Congress claimed that this legislation “satisfied” the requirements of Article I, Section 8, it did not.

The AUMF was not a declaration of war. It authorized the president to make that decision on his discretion. Thus, the AUMF was a transfer of the war-declaring powers to the excecutive branch – which is clearly not authorized by the Constitution.

In short, what Congress told the president with the passing of the AUMF was “You decide when or if we go to war with Iraq. Just let us know shortly after.”

Therefore, every single member of Congress who voted to transfer this power to the president violated the Constitution. And, the president violated the Constitution by not refusing this illegal transfer of power.

It’s pretty simple. When one branch breaks the law, it’s up to the others to “check” that branch. But, unfortunately, all three branches have been ignoring the plain English of the Constitution for decades.

NO MATTER WHAT

As far as declaring war, James Madison, the “father of the Constitution,” summed it up best:

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

It’s in plain English. No right. In any case.

That even includes a situation where the Congress violates the Constitution and transfers its war-declaring powers to the president.

In any case.

No matter what.

Period.