Originally Posted by sebastian_dangerfield (Post 473811)

Lighten up, Francis. For fuck's sake... It's just an intellectual exercise. And by the way, you did notice the author didn't think the idea was wise to put into actual practice. I cited a more qualified author arguing against my position, and you chose, oddly, to rail at his article.

I love these kinds of discussions finding their way to broader audiences because they highlight fragilities in the system and widen the sphere of deviance in regard to acceptably discussed options. It's amusing stuff. You have to admit, a world in which the concrete baselines are continually shifted and consensus defied is entertaining to observe. One would have to be an ogre, or a tremendous dullard, to not find the current flailing nature of things, as scary as it might be for many, pretty fascinating. Why you're getting mad about an article discussing a radical fix I have no idea. I figured you'd agree with the author's conclusion The Policy Could Never be Implemented.

Originally Posted by Adder (Post 473810)

Does it? Doesn't it sound like a political question?

Originally Posted by taxwonk (Post 473806)

The Congress also appropriated discretionary fund for the military. They can't tell him he can not use money that has already been appropriated for discretionary spending. That would be a usurping of Executive power.

Originally Posted by taxwonk (Post 473814)

Madison v. Marbury. The Court has jurisdicition over challenges by the Congress to the power of the Executive.

Originally Posted by Adder (Post 473809)

Right. That's what comes to mind to me too.

I can't remember if there was any litigation over that, but surely it's a political question.

I guess they can try to impeach him over it. I don't suspect they would make a serious attempt to do so, though (i.e., they'd have someone marginal put up a resolution but not push to pass it). It's better politics for them to keep screaming about scare tactics than to give him a forum in which he's being prosecuted from which to mount a defense from the moral high ground. Maybe I underestimate their outrage though.

Anyway, I guess I'm with you in that I really don't seriously expect them to have done anything differently. But I'm also with Wonk in that I think I probably should.

Originally Posted by Adder (Post 473793)

It's difficult, but Wonk's right that he can do it. He's commander in chief and the chief executive. He can move them to the brink at Levinworth and start putting them on trial and there is nothing Congress can do to stop him.

Originally Posted by Tyrone Slothrop (Post 473818)

If it is clear that Congress is acting squarely within an enumerated power, why do you think that Obama gets to simply disregard what Congress has done?

Originally Posted by Tyrone Slothrop (Post 473819)

I don't usually respond to the same post twice, but isn't this like saying, "He's commander in chief and the chief executive. He can declare war on Uzbekistan and there is nothing Congress can do to stop him." Uh, no. Congress has the enumerated power to declare wars (and appropriate money), not the President. On some level, what happens in a constitutional crisis is a political question, but let's not kid ourselves about the law. I don't think the President should disregard the separation of powers just because Congress has done something I really disagree with.

Originally Posted by Adder (Post 473821)

Is it clear? Congress gets to micromanage the functioning of the executive branch without limitation?

Originally Posted by Tyrone Slothrop (Post 473823)

A few brief moments with Bing yields someone named Rachel Casey saying this:



I think the general answer to your question is: yes. It would be different if the President had an enumerated power to seize and try foreign terrorists in the manner of his choosing, but it's pretty clear that Congress gets to create the federal prison system and can limit the jurisdiction of federal courts.

Originally Posted by Tyrone Slothrop (Post 473815)

If Congress says, very clearly, that federal money cannot be used to incarcerate or try these people in the United States, then the federal government cannot spend money on those things. That is what has happened. I happen to think that Congress is very, very wrong in its judgment, but we are stuck with the Congress we have, not the one we want.



Obama is stuck with a mess that President Bush created.* If you assume that the only people left at Guantanamo are those whom Obama would move to the US and try there, then I doubt that there's any international law that says he must free them.

Instead of kidnapping people, Obama is killing them with drones. I've already said that I think this is bad policy, but if you accept that he is killing people who are at war with the United States and who are otherwise outside our reach, I'm not sure it's illegal. Some big caveats there, though.

Originally Posted by Adder (Post 473824)

Ah, the power of Bing! (God what a terrible branding).

And as to the latter, yes. But I'm not so sure that executive as commander in chief doesn't have an enumerated power to seize enemy combatants.

Originally Posted by Adder (Post 473816)

I suppose. But once he does it, isn't it moot? And injunction telling the executive not to have spent money in ways congress said he can't?

Originally Posted by Tyrone Slothrop (Post 473818)

If it is clear that Congress is acting squarely within an enumerated power, why do you think that Obama gets to simply disregard what Congress has done?

Originally Posted by taxwonk (Post 473825)

I don't assume that the only people there are ones Obama wants tried. There are still some there who cannot be tried.