A good forum for a law and public policy debate

Do you enjoy debating law and public policy? If so, I’ve got both an opportunity and a challenge for you:

As I have mentioned before on this blog, I am enrolled in a National Security Law class this semester. This class is outstanding; I’m so glad I elected to take it. Currently, we are looking at the War Powers Resolution as a result of the struggles of the Separation of Powers issues during Vietnam. One of the assignments we have for Monday is to re-reread the War Powers Resolution of 1973 and consider its strengths and weaknesses. We are to figure out how to “fix” the War Powers Resolution to make it better than what we currently have – what would you add, what would you rewrite, what would you strike altogether?

While I will be doing this over the course of the week, I thought I would take this opportunity to ask those of you who are interested in manners such as this to put your thoughts on this subject in a reply to this post. I am interested not only in forming my own opinion, but seeing how my opinion matches and diverges from other opinions, and I see this as an opportunity to get input from a variety of sources while developing my opinion – which can be of great help. You can get to a link of the War Powers Resolution by clicking here, and then clicking on the section numbers at the Cornell law website that comes up.

If this question piques your interest, don’t comment here. Instead, go to Out of the Binjo Ditch and let Steve know what you think. Aside from the fact that the question is inherently interesting, I think it’s a fascinating use of the collective intelligence of the internet to flesh out a challenging intellectual assignment.

By the way, if you’ve never read a statute before, this will give you a good chance to see why we need lawyers.  This is so gibberishy nobody but someone paid to do so would want to read with it and struggle with its terms — something that applies to a disproportionate number of laws, both state and federal.  There’s a statutory style of writing that itself should be illegal.

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  • JJ

    This is why we need lawyers? Were they not the ones who rendered it gibberish to begin with? The statute is a masterpiece of doubletalk, designed solely, as far as I can tell, to allow congress to feel important and exercise a limit on the powers of the Presidency.

    Entirely irrelevant for the major worry of the time when it was written, too. That was of course the USSR, and all this consultative stuff in 1545 and 1546 – three days, two sessions, fifteen days, a month – not very relevant to a war that would have been all over in under an hour.

  • jg

    So, a question for you all: who do those who make law write so poorly? Why is ‘legalese’ considered a pejorative term?

    Do law schools emphasize the ability to write well? If so, then the problem must emerge later.

    Admiring those who can speak and write well (which BW addresses in another good post), I wonder, too, if we give these voices proper due.

    How mired we are in confusion without their skills.
    Believe it or not, I am thinking about a journalist! for the moment–Caroline Glick of the Jerusalem Post. Clarity is such a virtue! (Wow, she has an admirable resume:)


  • http://stevehouchin.blogspot.com Steve

    The issue is not with law schools teaching students to write well; the problem lies with trying to cover as many potential loopholes and contradictions as possible. Laws need to be written to jive with other laws, treaties, and the Constitution.

    This has to be done particularly because the general public does not read (and many do not understand) legislation. This is why lawyers are necessary – to protect the people from ingressions on their liberties by the government – to keep them honest – and to protect against anarchy. There was a reason why Shakespeare wrote: “First thing we do, let’s kill all the lawyers,” after all.

  • greg

    Our Bookworm was too modest and choose not to reveal her own contribution to the blog, wherein she asserted:

    “I can’t help but believe that it impairs executive flexibility in times of national emergency — a greater risk, I think, than a President potentially running amok. But, as I said, that’s just a gut feeling after being repelled by the minatory and mandatory procedural requirements that I so loath.”

    True to her authoritarian predilections, our Bookworm would bend over backward to sacrifice democratic oversight for imperial fiat (and ‘loathes’ the encumbrance of such).

  • http://bookwormroom.wordpress.com/ Bookworm

    You’re naive, Greg, to think that there is nothing anti-Democratic about mindless rules.

  • greg

    Spoken as only an authoritarian could.

  • http://stevehouchin.blogspot.com Steve

    Greg, it’s input like yours that I would be interested in hearing, as well as input from Bookworm, and others. I would enjoy hearing your take on the War Powers Resolution, if you get the chance to stop by.

  • greg

    You are kind to solicit my commentary on your blog, Steve. But really, anything I might have to say is only received third- or fourth-hand from the primary sources you need to be studying.

    The only possible angle of interest available here in Bookworm’s comment section, which might be of interest to your analysis (as a footnote) would be this: 34 years after the passage of the War Powers Act (over a Republican veto!) authoritarianism is such a commonplace position within our political culture that comments such as Bookworm’s (which obscure — rather than support — the intent of the Act, which empowered unilateral Presidential action) are given a respectability they’ve never enjoyed before. It is a chilling time to be an American.

  • Danny Lemieux

    Given that Presidents can be removed from power by the ballot through Constitutional means, Greg is hyperventilating, as usual, about authoritarianism which, from what I can discern, he defines as the ability to enact policies with which he (Greg) does not agree. Perhaps what Greg means by “authoritarianism” is actually “leadership”. Greg is right – he does need to chill out.

    The War Powers Act gave Congress an effective veto over the conduct of foreign policy, which is (constitutionally) the domain of the Executive Branch. If Congress believes that the Constitution needs to be changed, then the proper way to do so should be via the Amendment process. I am still amazed that Reagan never challenged the War Powers Act, not to mention the Boland Amendment, before the Supreme Court.

  • http://stevehouchin.blogspot.com Steve

    If Reagan had tried to challenge the War Powers Act, it most likely would have been kicked at a lower court under the Political Question doctrine or some other justiciability issue.

    The Act sets forth to codify the gray area between what the President is authorized to do absent Congress’ approval and what he cannot do, the “zone of twilight” to which Justice Jackson referred in Youngstown Sheet and Tube. The biggest shortfall that I can see in this is that Congress can act to strip the President’s powers by doing nothing, which is incongruent with its authority to declare war, and its other granted powers under Article 1.

    It might be prudent to point out that although there have been over 125 instances of the President committing troops over our country’s history, that neither means that he has the authority to make war (arguably, he has this as an implied authority under his plenary powers and the fact that Congress is granted the authority to only declare war), or that he had the power to act absent Congress’ express approval, which is part of what the War Powers Resolution sought to clarify.

    It’s also worth noting that no President has yet agreed with the War Powers Resolution. President Ford, in the mid-1980s said that IF the Court ruled that the Resolution was binding, he would obey, then appeal to the people to change the laws…

  • JJ

    Danny is precisely correct. There is only one commander-in-chief, and that person is appointed directly by the people in the one national poll we have. (Think what you like about the multiplicity of polls in which we engage, there is only one that counts, and we hold it every fourth year.)

    If the congress does not like that, there is a remedy available to them: propose a constitutional amendment, see how it plays out. An alternative remedy is try to remove the individual. (This will be next to impossible, as Clinton has forever lowered the bar to the point where obstruction of justice, lying to a federal court, lying to the people, and suborning perjury are, since his administration and thanks to the democrats, all now permissible.)

    Writing some dopey (and it is dopey, and given the times in which it was written it is also completely unworkable) law that attempted to, in essence, intrude upon and strip away some of the commander-in-chief’s constitutionally granted powers will be seen for the joke that it is.

    It will hold – as it has – precisely as long as presidents are willing to be polite, and pay it lip service, which translates to: as long as there is no genuine national emergency. At which point it will go in the toilet, and the commander-in-chief will behave as such.

    As Steve points out, no president has as yet agreed with this nonsense – but so far they’ve been polite about it.

  • http://binjoditch.blogspot.com Steve

    Bookworm, et al.,

    I would like to thank everyone who stopped by and said their piece with regards to the War Powers Doctrine. I found all the comments to be quite helpful, and I got as much out of this exercise as I did from the class itself. In the next day or two, I will post a follow up on this issue wherein I will summarize the discussion had in our class.

    It should be an interesting read – illustrative for all…

  • Ymarsakar

    I’ll take BOok’s brand of authority over greg’s leadership any day.