Judicial activism takes new heights as a "watchdog group" sues the President over the Syria strike.

Talk about "arm-chair quarterbacks!"

The President is the Commander-in-Chief of the US military, and as such does have discretionary powers ... including the authority to allow military commanders to exercise their judgment in their commands ... and the Judiciary is not a part of it.

But, oh, how the Judiciary wants to be! In this case, the "watchdogs" want to use the Court to compel the disclosure of top secret information, so that Their Honors can decide whether or not the CinC was authorized to authorize what he did. Just like, a little while ago, a Hawaiian judge questioned whether the President "should be allowed, by the Court," to do what Congress expressly allowed him to do. (His Honor appears to believe that the decision of whether-or-not to admit someone at the borders of the country is "interfering with that person's free expression of his religious beliefs." Or something.)

Our system of government consists of three branches – not "just one branch" which utters law by proclamation. Unfortunately, our judges seem too-anxious to impose just such a system upon us.

Fundamentally, the Executive Branch is Executive, and "Executives Decide." The branch is also the top military command, and military commanders "Order." They don't have a "peanut gallery" of black-robed individuals sitting in the bleachers, deciding (from a safe distance) what this decision-maker "woulda coulda shoulda" do or have done. The "watchdogs" have no legal standing nor any other legal theory that inserts the Honorable Court into the Executive or Military process.

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Sigh. Sundial, the president's discretion in the exercise of a power comes into play once the power is triggered. The president's discretion does not extend into invoking the power in the first place.

So the president's power to wage war is based on the Constitution, either through a direct reading of the powers given to him, or through the laws passed by Congress to assist him in waging war where the Constitution gives Congress a role.

So the president is commander in chief of the armed forces, but he cannot wage war without the consent of Congress. Once Congress gives its consent, HOW the president wages that authorized war is solely up to him.

The war powers act permits the commitment of troops for a limited period of time (60 or 90 days, I forget which), provided that the president ask Congress for a declaration of war during that time.

Here, there was no intent to commit troops, no intent to ask Congress for a declaration of war, just a one-off attack based on the president's whim and caprice.

The moral and humanitarian and political bases and justifications for the president's attack on Syria are well known, and are indeed strong. The LEGAL base for his attack, however, has never been disclosed and may not exist.

The War Powers Act was specifically engineered to control "commitment of troops." (Especially, "the draft.") But, American troops are already committed in this Command. The proposals to use these weapons originated from the Commanders, and were approved. It isn't "whim and caprice" to decide to launch a military strike: it is a military command decision.

We haven't had a declaration of war since December 8, 1941, so far as I can recall. We have also never observed the Constitutional provision that funding for War must be renewed every two years. We just avoid using the word, "war." That way we keep fighting and fighting and the appropriations are mostly secret. (So, the American people have no idea just how their money is being wasted.)


The Commander-in-Chief, like the supreme military commanders under his command, are authorized to do what they do for a living. Likewise, the Congress has a say in the matter – setting bounds upon what the military can do, and, if it comes to that, declaring an all-out State of War. But it is specious to say that "the Courts" have anything to do with it.

And yet, this is precisely what people like our dear Hawaiian want to do. "I'm sorry, but someone has sued you in my Court, and we've decided not only that this person 'has standing' in our Court, but that our Court is the ultimate decider of what the Commander-in-Chief and his subordinate military officers can or cannot do." No, it isn't.

The military commanders decide. The Congress authorizes "in general," but does not second-guess the boots on the ground. The Courts have no part in this at all.

The Courts cannot decide, however earnestly they want to, that the military forces (nor any of its commanders including the CinC) "had no legal basis to act." They did. They do.

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Likewise, if he wanted to, the Executive Branch could declare that the actions of the Judicial Branch, in opposing his exercise of national security prerogatives expressly granted to him by the Legislative Branch, are ... "unconstitutional."

You see, the Constitution does not even contemplate this thing called, "unconstitutional." It never authorized the Courts to make any such judgments – they just did it one day, declared it to be "precedent," and have been doing it ever since. Presidents have actually done the same before. So has the Congress. It's just rare.

But Trump is a very shrewd negotiator. He doesn't play his cards capriciously. He isn't a politician. He's a billionaire.

Your post is riddled with misconceptions and errors, Sundial, but I'll confine myself to the gist of the conversation. The commander-in-chief and his subordinates are authorized to do what they do for a living (wage war) ONLY if Congress authorizes it. There is nothing in the Constitution that allows the president to engage in "semi-war" or "conflict" on his own recognition and authority, or that limits Congress to only "all-out war" scenarios. Simply put, if the president is going to engage in an act of war, he must have authorization from Congress. PERIOD. So the courts DO have something to do with it; If the president is performing an illegal or unconstitutional act, the courts as a matter of law have the power to order him to stop, and to forbid the expenditure of public funds on whatever the activity is. The courts and Congress cannot second guess MILITARY decisions (strategies, tactics, etc.) made in how to prosecute that war. The courts can, however, forbid the president from waging war if Congress has not authorized the use of armed force (war) against an opponent.

In the 1940s the US Supreme Court agreed that the president could respond with force in the case of "sudden invasion" (e.g., a Pearl Harbor attack) without waiting for Congressional authorization. That defensive action after an event, however, does not apply to Syria. Syria had not attacked the US.

Trump's humanitarian, moral, and even military (can't allow the normalization of the use of chemical weapons) arguments for attacking Syria are strong, as I said before, but without legal authorization from Congress, he could not lawfully so act. The courts decide lawfulness. Indeed, I have to ask why Trump simply didn't convene an emergency session of Congress (it was sitting, after all), lay out his humanitarian, moral, and military arguments for war against Syria, and ask for permission to bomb. I'm sure it would have been granted in a heartbeat.

The House of Representatives, not the Courts, determines the expenditure of public funds and the Court has no power to say that they can't spend the money. Furthermore, if the President is doing something that Congress has not authorized, then Congress damn well knows it – without interference from someone in Hawaii who can't tell the difference between attempting to pass a national border and holding a religious worship service. (And who decides that people that are outside the USA, at that moment, somehow have rights inside the USA.

Again, the Courts have no power to declare whether or not the President and the US Military can respond with force. "Oops, all you soldiers have to leave those nice people in Syria alone, because we've decided that those soldiers aren't authorized to be there and we've decided to take all their money away." The decision in 1940 was of no value. The Constitution said that we would have armed forces and that it was "to provide for the common defense." That didn't authorize judges to put on military hats.

The Commander in Chief does not have to "convene an emergency session of Congress" in order to approve a subordinate commander's plans to take out enemy soldiers who were in tunnels that "the mother of all bombs" could, in that commander's judgment, deal with. Neither does it have to call Oahu, or the Supreme Court. He doesn't have to "ask permission" to bomb, or to approve a commander's recommendation to bomb. We have been in Syria and surrounding regions for a very long time, Congress is very aware of it, and if Congress didn't think that the actions were authorized by the legislation it had passed, Congress would be doing something to fix the problem. The fact that they are not doing so is implicit authority to proceed.

The military commanders in the field, and the CinC who is supreme commander over all of them, do have discretionary powers relative to their commands. They don't have to convene a judiciary or a congressional committee.

I wonder what the original framers of the United States Constitution would think about this government in today's year of 2017?? Undeclared wars, citizens money and valuables taken without any " due process ", unarmed people being killed by " police ", political graft and corruption, etc.,etc!! Those framers intended " a limited government with expressed limited powers "; not an unbound government gone crazy with power here at home and also abroad!!

First, the House of Representatives originates all money bills. Those bills must be approved by Senate and signed into law by the president Whether that money is being spent for its authorized purpose, however, is for the courts to decide. Money authorized for "military" purposes is not the same as using that money for a war not declared by Congress.

Second, the war in Afghanistan (MOAB use a little while ago) WAS authorized by Congress, so your analogy does not hold. Once war is authorized, the conduct of that war is up to the president.

Like I said, your posts are riddled with misconceptions and errors. Nice and salient issues, though.

No, the Courts do not get to decide whether the money is being spent for its authorized purpose. "The Power of the Purse" rests in the House of Representatives, not in a Judiciary made up of non-elected people who can serve "for the rest of their natural lives." Congress writes its budgets – secret or otherwise – and Congress oversees how the money is subsequently spent. The Judiciary has no standing to declare that the money really isn't being spent as authorized, and no power to shut it down. These would be the decisions of a sovereign.

When you compare the relative sizes of the first three Articles, it's clear that "the Congress is it." Congress creates the law, and authorizes the Executive to execute those laws. The Judiciary – barely described at all – judges cases. Nowhere is the Judiciary given the power of judicial review over the actions of either of the other two Branches. But the Founders clearly foresaw that they would try, "stealthily ... little by little." Which is exactly what they did.

You are not the first to say that Marbury v Madison (1804) was wrongly decided, but it is the law of the land, its interpretation of the Constitution makes sense, and neither the executive nor the Congress has suggested otherwise ever since.

As at least one wag has noted: "The Supreme Court is not final because it is infallible. It is infallible because it is final."

As for your statement that Congress oversees how money is spent, that is simplistic. Congress can review and approve or disapprove how the executive spent money, but years after the fact, and approval/disapproval can be for a wide variety of reasons, including legal and non-legal (political, etc.) grounds. The courts have the ability to stop the executive spending money immediately, but only on legal grounds, nothing else.

The elected House of Representatives has the "power of the purse," not the appointed Honorable Court.

Otherwise, the Court could say, "Oh, you should be nice to those Syrians. [I've decided that] What you are doing is illegal, so [I've decided that] you can't have any more money and you must stop fighting them immediately." Judges don't have that power.

"Legal Grounds" is what a judge says it is, and that's the problem. Just as we saw that a Judge "decided" that the President has no authority to exercise National Security prerogatives that Congress expressly granted to him, because – according to that Judge – being "muslim" is a religion, and forbidding a person (who is, at that moment, outside the country) to enter the country is "infringing upon his Constitutional rights," even though that person is not inside the country and is not a citizen to begin with. Judges also do not have that power. (For one thing, a person who's standing outside the borders of the country, asking to be let in, does not have standing before any American court. And, "a Judge is neither President nor Congress.")

The Constitution never uttered the word, "unconstitutional," and never granted that power to the Judiciary. One day, as you noted, the Judiciary simply assumed that power and thereafter called it "precedent." And, generally speaking, the other two Branches have humored them. But, as the Founders foresaw, the Court continues to "creep forward," extending its power with stealthy grabs.

Obviously, there should be a Constitutional amendment which defines exactly what this power is, and isn't. This should not be a "gray area." But getting the USA to amend its own Constitution is like pulling hen's teeth. It has done this only 27 times in the history of the Republic, and 2 of those canceled each other out. (Curiously, the latest Amendment, #27, appeared as the second line-item on the original Bill of Rights document, which actually contains twelve proposed Amendments, one of which (so far) has never been passed.)

We elect Presidents, not Kings.

Presidents are supposed to obey the law (granted, they haven't always).

Ruling against a President who breaks the law upholds the rule of law and is, in fact, a deeply conservative act, as it conserves the will of the polity as expressed in legislation against despotism.

I tend to side with franbell on this, but this whole thread looks like one of those on Facebook and nothing any reasonable people would engage in.

Is anyone here trained in law? I am not. If you are not then you are arguing from YOUR UNDERSTANDING as a Layperson, not an expert. Please keep that in mind and try not to get carried away.

As a layperson then, here is my take.

Legislators legislate. That is what they do and why they exist. they cannot run things and they are certainly not generally good judges. The executive branch must come to them for money, changes in the law, and authority over issues not covered by the executive mandate.

The executive branch takes actual action and enforces the laws. They have no business trying to make laws, that is for the legislators. That said, there is significant power in deciding exactly HOW to enforce the law and what the priorities should be for the good of the country.

The judicial branch actually hears the cases and judges the laws as applied and determines if and when the laws are broken or not being properly enforced and cracks whip on the other two branches when they get it wrong. That is exactly what THEY are for. They cannot take action, but they can REQUIRE action. They cannot make laws, but they CAN discard bad laws. They act ti keep the other two branches properly within the constraints of constitution, law, and precedent.

All of this is public information and requires no training in law. It is taught in better High Schools. It should be in all of them.

Given the above, it seems to me that a court telling the president when something he has mandated is out of line is EXACTLY what they are for.
Given the above, it seems to me that a court telling the congress that a lay they have passed in unconstitutional is them acting for EXACTLY the reason they exist.
You can reasonably disagree with the decision (I often have) but you cannot claim that they are not doing their job. That IS their job. (Well, unless you failed that class in High School, I guess.)

Unfortunately, "the rule of law" de-evolves to "the rule of a particular individual(!)" who has had the good fortune of being appointed(!) to a position that s/he may hold until the day s/he dies.

"The will of the polity," as you say it, is in fact nothing more than "the ruling opinion of a single individual who was elected by no one and who now answers to no one." (Likewise, the legislation is neither "against depotism" nor "for it.")

Who says that "the President has 'broken the law?'" (Say ...) "A solitary appointed-for-life Judge in New Jersey," who, having just walked out of a convenient telephone booth, has decided to put on his "commander-in-chief blue tights."

Yes, yes ... the Judiciary has lately done very well by presenting The Almighty Bench™ as "the nation's best last remaining defense against itself."

I see.
So your argument resolves down to they have no right to do that because I do not like it noise?
Did someone kick you off of facebook or have you now actual case to make?
I mean, if you just wanted to vent I suppose that is OK, but if you wanted to actually convince someone should you not present some facts or arguments instead of just ranting and insulting?