SENATE BILL: Emergency Resolution to Authorize Force in Iraq (Withdrawn)

[Southern Senator North Carolina Yankee]

I don't recall saying they didn't. But of course any drones presently owned by the Army would already be funded.

What limitation on the Presidential power to command the Armed Forces were you referring to?

The SEnate has the power to withdraw such funding as a means to deny the PResident ability to engage in a conflict. An authorization works as a reverse of that I would think but acknowledges the Senate's authority to stop it as well if it wants to at a later date.

So, hypothetically, under your interpretation of Article 2, Section 1, Clause 3, the President could launch a full-scale invasion of Iraq without Senatorial approval provided that he only used existing military resources and the Senate did not revoke any current military funding?

Define full scale invasion.
 
Speaking strictly of the Constitution, he could send in resources for some purpose that the Senate could later bar yes. A war with a sovereign nation would by definition require a declaration though, but we are not talking about war with a soveriegn nation but war in support of a sovereign nation, support that is requested by them.

Unless legislatively, the Senate has required pre-approval through some kind of War Powers Act that operates constitutionally by dening said funding ahead of time and requiring the President to get it before going in.

Alright, so you're saying that the President can take any military action whatsoever against an enemy that is not a sovereign nation, but the Senate can retroactively stop him by revoking military funding? If that's the case, why does the President even need Senatorial authorization to combat ISIS in any manner whatsoever? Is there any precedent for such a wide interpretation of Article II, Section 1, Clause 3?

I am barely any less confused about all this then anyone else. I am merely stating what I presume to be the convoluted legality, but legality nonetheless, of the various similar stuff in the RL, which only adds to the complexity of the situation since I don't know what all statute Atlasia has passed and what impact any differences in wording between the US and Atlasia would have if any or even what those differences are.

[Southern Senator North Carolina Yankee]

ITTIL: Apparently it's not war if we've already paid for it, if it's against an entity without sovereignty, if an already de-legitimized government wants us to bomb their territory, if the Senate hasn't explicitly said no, if you call it something else or if we send in 50,000 drones instead of 50,000 soldiers.

I didn't write this Constitution, Griffin. On top of the applicable real life equivalents, I am also taking into consideration what Oakvale's ruling said on the nature of the various clauses in section 5, or atl east my best understanding of it at this point.

I have also at now point stated a preference for or against this being the case, merely an analysis of what I think presently is the case.

A lot just hinges on whether there is a War Powers Act type thing in force and whether or not the it requires pre-approval from the Senate. If so, then the requirements regarding the need for Senate approval for a "limited engagement" would be as such law requires. If the real life version is in force, then I would recommend revewing that for clarification.

[Southern Senator North Carolina Yankee]

I know for certain there have been instances where in RL, various military assets were sent in without an approval beforehand. I also don't think Clinton got approval first before bombing Iraq in the 1990's but I might be mistaken on that. Since 911, the US has hit targets without authorizations regarding any specific country that they were in, several times as well and certainly without a "formal declaration of war" as many are labeling as the only way you can engage in combat in this thread. The Bin Laden Raid was conducted without informing Pakistan and certainly without a Declaration of War on Pakistan or even of his terrorist network. A mere authorization for the use of force that was passed after 911 has been the legal basis for attacking numerous targets across the globe to attack Bin Laden and his allies, in spite of the fact that Bush used the term War on Terror, no formal declaration of war was passed that I recall.

Here is the key questions one should be asking in this debare from a purely legal perspective. What difference if any exists between the Constitution of Atlasia, versus the US constitution that render a) declarations of War as the only way to authorize the use of force and b) prevent any engagement in any military action in the absence of such. There you will find your answer as to what is legal and what is not regarding this matter. Also, as c) you should probably ask what is the legal distinction if any between a declaration of war and a authorization for the use of force, particularly if the threshold for such (Senate PAssage) is the same?

[Southern Senator North Carolina Yankee]

The relevent portion from the healthcare case:

The Court does not believe that the power to act in order to guarantee a single, undistorted market has any bearing on legitimate uses of the Senate's power under the other thirty-one clauses. To quote relevant precedent from perhaps one of our most distinguished predecessors, Chief Justice Sam Spade, (in what the Senior Associate Justice, on a point of personal privilege, considers one of the most finely crafted legal decisions issued by an Atlasian Court in its history) - the landmark Junkie v. Atlasia (2010);

However, as the Court shall stress today, these powers are “affirmative” grants of lawmaking ability.  Except where limited within the actual grant of power itself, each affirmative power given to the Senate does not limit the other affirmative powers of the Senate.  They exist separately, in and of themselves.  And even where separate powers duplicate each other, each affirmative grant of power to the Senate is not limited by this overlap.  Rather, each provision supplements the other respective power.
[...]

As for the impact of A1, S5, C4 upon our holding, the Court finds it irrelevant to our conclusion.  While we certainly acknowledge that a valid justification for the Senate’s passage of laws could be found by promotion of “a single market where competition is free and undistorted”, as noted above in Part I, there is no requirement that the Senate must promote “a single market where competition is free and undistorted” when it appropriately legislates under its other powers derived from the Constitution.

[Southern Senator North Carolina Yankee]

Maybe I should have bombed Iraq without any sort of legal backing and just become Atlasia's First War Criminal

DemPGH and Windjammer have yet to swear-in.

ANARCHY!!!!!!

[Lumine]

Looks like I really need to start working on a War Powers Act to prevent this mess. But so far it seems Deus may be right in the President having the constitutional right (or loophole, as your prefer), to deploy military assets and bomb places as long as he's not in war with a sovereign nation. While this may undercut the original argument of this resolution, I still find it important for the Senate to give authorization (even if the term has lost formality). I think I will consult with the Supreme Court today as well to see if I can get some opinions on the constitutional legality here.

[Oakvale]

Looks like I really need to start working on a War Powers Act to prevent this mess. But so far it seems Deus may be right in the President having the constitutional right (or loophole, as your prefer), to deploy military assets and bomb places as long as he's not in war with a sovereign nation. While this may undercut the original argument of this resolution, I still find it important for the Senate to give authorization (even if the term has lost formality). I think I will consult with the Supreme Court today as well to see if I can get some opinions on the constitutional legality here.

While I'm following this debate with great interest I should point out that members of the Supreme Court can't give legal counsel or opinions outside of a case.

[Deus Naturae]

Looks like I really need to start working on a War Powers Act to prevent this mess. But so far it seems Deus may be right in the President having the constitutional right (or loophole, as your prefer), to deploy military assets and bomb places as long as he's not in war with a sovereign nation. While this may undercut the original argument of this resolution, I still find it important for the Senate to give authorization (even if the term has lost formality). I think I will consult with the Supreme Court today as well to see if I can get some opinions on the constitutional legality here.

FTR, I don't agree with that interpretation. I'm just trying to figure out what the legal argument for this thing is so I can argue against it.

[Deus Naturae]

Also, just based on the current text, this would seem to be a declaration of war, considering that it directly cites Article I, Section 5, Clause 18...

[DemPGH]

I understand II.1.3 as given the President the power to direct a war once Congress or the Senate has issued a declaration or has authorized an attack. Presidential powers are likely fairly limited and temporary - to respond to a crisis or to stave off an immediate threat, essentially. There is a degree of latitude there, and there has been in RL latitude given for operations that are limited in scale. That's at least my reading of it.

I'm of course not asking for a declaration of war - against whom, anyway? ISIS?

Also, absent a coalition I have no plans to sand the military to Iraq at all at this time for anything.

[Lumine]

Not even drones, Mr. President? I would find that decision to be incredibly dissapointing and in the wrong direction in regards to how we should act in the Middle East, but if true it would make this effort somewhat pointless (although I would still move forward with my other bill to provide assistance).

[🐒Gods of Prosperity🔱🐲💸]

The relevent portion from the healthcare case:

The Court does not believe that the power to act in order to guarantee a single, undistorted market has any bearing on legitimate uses of the Senate's power under the other thirty-one clauses. To quote relevant precedent from perhaps one of our most distinguished predecessors, Chief Justice Sam Spade, (in what the Senior Associate Justice, on a point of personal privilege, considers one of the most finely crafted legal decisions issued by an Atlasian Court in its history) - the landmark Junkie v. Atlasia (2010);

However, as the Court shall stress today, these powers are “affirmative” grants of lawmaking ability.  Except where limited within the actual grant of power itself, each affirmative power given to the Senate does not limit the other affirmative powers of the Senate.  They exist separately, in and of themselves.  And even where separate powers duplicate each other, each affirmative grant of power to the Senate is not limited by this overlap.  Rather, each provision supplements the other respective power.
[...]

As for the impact of A1, S5, C4 upon our holding, the Court finds it irrelevant to our conclusion.  While we certainly acknowledge that a valid justification for the Senate’s passage of laws could be found by promotion of “a single market where competition is free and undistorted”, as noted above in Part I, there is no requirement that the Senate must promote “a single market where competition is free and undistorted” when it appropriately legislates under its other powers derived from the Constitution.

How are you suggesting this is relevant to executive war power authority?

[Southern Senator North Carolina Yankee]

The relevent portion from the healthcare case:

The Court does not believe that the power to act in order to guarantee a single, undistorted market has any bearing on legitimate uses of the Senate's power under the other thirty-one clauses. To quote relevant precedent from perhaps one of our most distinguished predecessors, Chief Justice Sam Spade, (in what the Senior Associate Justice, on a point of personal privilege, considers one of the most finely crafted legal decisions issued by an Atlasian Court in its history) - the landmark Junkie v. Atlasia (2010);

However, as the Court shall stress today, these powers are “affirmative” grants of lawmaking ability.  Except where limited within the actual grant of power itself, each affirmative power given to the Senate does not limit the other affirmative powers of the Senate.  They exist separately, in and of themselves.  And even where separate powers duplicate each other, each affirmative grant of power to the Senate is not limited by this overlap.  Rather, each provision supplements the other respective power.
[...]

As for the impact of A1, S5, C4 upon our holding, the Court finds it irrelevant to our conclusion.  While we certainly acknowledge that a valid justification for the Senate’s passage of laws could be found by promotion of “a single market where competition is free and undistorted”, as noted above in Part I, there is no requirement that the Senate must promote “a single market where competition is free and undistorted” when it appropriately legislates under its other powers derived from the Constitution.

How are you suggesting this is relevant to executive war power authority?

I wasn't

There seemed to be multiple lines of constitutional questioning regarding who can do what. There also seemed to be a presumption that this had to be structured as a formal declaration of war in order for the SEnate to do this. My point was that under other clauses of the same Article the Senate could give aid to Iraq and that ruling means that the requirement to declare war in one clause doesn't limit the ability to grant such aid under a different clause like the one on mutually beneficial interactions with other countries, which is rather vague obviously.

[Southern Senator North Carolina Yankee]

I understand II.1.3 as given the President the power to direct a war once Congress or the Senate has issued a declaration or has authorized an attack. Presidential powers are likely fairly limited and temporary - to respond to a crisis or to stave off an immediate threat, essentially. There is a degree of latitude there, and there has been in RL latitude given for operations that are limited in scale. That's at least my reading of it.

I'm of course not asking for a declaration of war - against whom, anyway? ISIS?

Also, absent a coalition I have no plans to sand the military to Iraq at all at this time for anything.

If you wanted to, the most appropriate course would be an authorization to support the Iraqi gov't against ISIS through limited and stated tools listed in the text as well as the objective of reducing their relative strengh to a point that the Berbari gov't in Iraq has time to stablize the situation and take the offensive on their own. That is what I would have pushed for if this text had gone anywhere that way mission creap would have been less likely.

I think it would be a mistake to miss this opportunity with a unity gov't forming under a Sunni Kurd. If the situation deteriorates, Iran could very well fill the void and almost assuredly the gov't of Iraq would return to that of a division and sectarian Shiite leadership as it is in real life.

[Deus Naturae]

Wait...so if this is being/will be justified under one or more of the Senate's I.5 powers, why is the Senate authorizing the President to do anything? If this is just the Senate using its own powers, why doesn't the Senate just do it itself instead of authorizing the President to do it?

[Southern Senator North Carolina Yankee]

Because exeuctive branch, ah, executes what we legislate no?

This is complicated enough lets not complicate the basics too.

[Southern Senator North Carolina Yankee]

It should be noted that all laws not creating programs but not funding them (which would be "appropriations") are in real life called "authorizations" as well.

[Deus Naturae]

It should be noted that all laws not creating programs but not funding them (which would be "appropriations") are in real life called "authorizations" as well.

So, by your logic, under its I.5.3 power to "provide...a single market where competition is free and undistorted," the Senate could hypothetically authorize the President to unilaterally eliminate any Federal regulation he saw fit? Or, under its I.5.10 power to "build...the infrastructure necessary for communication and transportation," the Senate could hypothetically authorize the President to engage in any infrastructure project he wanted within a certain area of Atlasia? I don't think the Senate has the constitutional authority to delegate its enumerated powers to the President.

[Southern Senator North Carolina Yankee]

I don't think you get the difference between executive and legislatively branches. THe Senate litteraly enforces nothing. The Executive is charged with enforcing the laws we pass and putting it all into effect.

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The President is the Commander in Chief of the military and the military is subordinated to the Deptartmnet of External Affairs in the executive branch.

The Senate is empowered to legislate what and how the executive enforces that what:

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It should be noted that all laws not creating programs but not funding them (which would be "appropriations") are in real life called "authorizations" as well.

So, by your logic, under its I.5.3 power to "provide...a single market where competition is free and undistorted," the Senate could hypothetically authorize the President to unilaterally eliminate any Federal regulation he saw fit? Or, under its I.5.10 power to "build...the infrastructure necessary for communication and transportation," the Senate could hypothetically authorize the President to engage in any infrastructure project he wanted within a certain area of Atlasia? I don't think the Senate has the constitutional authority to delegate its enumerated powers to the President.

What authority is being delegated? In both examples you cite, the key is "The Senate authorize" which as I side above is basically a catchall term for all legislation minus appropriations. So you are basically saying, "So you are saying the Senate can pass a law allowing the President to not enforce certain regulations?" and "So you are saying the Senate can pass a low allowing the President to build infrastructure in a a certain area of Atlasia?". The answer to both is ah yea, how else can you exercise legislative authority, other then "passing legislation"?

 

[Deus Naturae]

Except in this case, the Senate is not writing legislation, which the President then enforces. The Senate is attempting to delegate its power to legislate to the President. Unless you believe that the hypotheticals I brought up would be constitutional extensions of the Senate's legislative authority?

Also, just to clear up what's being argued once and for all: You're arguing that the Senate is exercising its power under I.5.20 to "promote Comity between Nations by engaging in such activities with other Nations as are of mutual benefit" by authorizing the President to take whatever military action necessary in Iraq to combat ISIS?

[Southern Senator North Carolina Yankee]

Except in this case, the Senate is not writing legislation, which the President then enforces. The Senate is attempting to delegate its power to legislate to the President. Unless you believe that the hypotheticals I brought up would be constitutional extensions of the Senate's legislative authority?

All Resolutions are by definition legislation. It would have the force of law and all legislation carries the same requirements for passage including all resolutions except OSPR Amendments, since rulemaking is exclusively our jurisdiction and thus no signature/veto etc.

How so, the Senate is first passing a directive no? and retains the authority to rescind it later, no? How is that delegating legislative authority, it sounds far more to me like the SEnate is exercising its legislative authority by authorizing the Executive's use of force as required by the Constitution.

Also, just to clear up what's being argued once and for all: You're arguing that the Senate is exercising its power under I.5.20 to "promote Comity between Nations by engaging in such activities with other Nations as are of mutual benefit" by authorizing the President to take whatever military action necessary in Iraq to combat ISIS?

No, just that such could be used to legally aid Iraq absence the use of the clause 18 on declarations of war if it were deemed that only through a formal declaration of war on Iraq could the Senate authorize the use of force there.

It is my analysis though, that such is incorrect and that an authorization for the use of force can operate as the functional equivalent of a formal declaration of war provided the threshold for passage is met and in this situation it obviously would as both require Senate passage and therefore this Resolution is legal under clause 18 regardless.

There is no legal difference between a declaration of war and an authorization of the use of force from a constitutional standpoint, since both have the same threshold of passage (majority+signature). Unless you are reading too much into clause 18, there is no guidance for how or what form the declaration has to take, just that we have to pass it first.

[Deus Naturae]

Alright, so this IS a declaration of war, and I.5.18 is from where the Senate is deriving the authority to do this? If that's the case, why call it something else?

[Southern Senator North Carolina Yankee]

Alright, so this IS a declaration of war, and I.5.18 is from where the Senate is deriving the authority to do this? If that's the case, why call it something else?

I am not aware of the full range of distinctions, but my assumption would be that a formal declaration of war implies a diplomatic recognition of the targeted entity as sovereign and by extension is a declaration of war on the people of said entity as well. Authorizing force without declaring war, is thus a way to avoid declaring war on a people as opposed to just combating the targeted entiry and not the people in the area it controls. North Korea could fit under the former of not wanting to recognize the gov't as legitimate, whilst Afghanistan and Iraq as wars of liberation would be the latter of liberating the people of said countries from their leaders, as opposed to waging war on both the gov't and its people.

[bore]

Alright, so this IS a declaration of war, and I.5.18 is from where the Senate is deriving the authority to do this? If that's the case, why call it something else?

I am not aware of the full range of distinctions, but my assumption would be that a formal declaration of war implies a diplomatic recognition of the targeted entity as sovereign and by extension is a declaration of war on the people of said entity as well. Authorizing force without declaring war, is thus a way to avoid declaring war on a people as opposed to just combating the targeted entiry and not the people in the area it controls. North Korea could fit under the former of not wanting to recognize the gov't as legitimate, whilst Afghanistan and Iraq as wars of liberation would be the latter of liberating the people of said countries from their leaders, as opposed to waging war on both the gov't and its people.

Yeah. The same reasoning is why Lincoln did not say that the North was at war with the South, because if he did that would grant them certain rights in international law. Instead he maintained throughout the war that it was a rebellion inside one country, and was purely an internal matter.

[Deus Naturae]

Alright, so this IS a declaration of war, and I.5.18 is from where the Senate is deriving the authority to do this? If that's the case, why call it something else?

I am not aware of the full range of distinctions, but my assumption would be that a formal declaration of war implies a diplomatic recognition of the targeted entity as sovereign and by extension is a declaration of war on the people of said entity as well. Authorizing force without declaring war, is thus a way to avoid declaring war on a people as opposed to just combating the targeted entiry and not the people in the area it controls. North Korea could fit under the former of not wanting to recognize the gov't as legitimate, whilst Afghanistan and Iraq as wars of liberation would be the latter of liberating the people of said countries from their leaders, as opposed to waging war on both the gov't and its people.

Well, I guess this just brings us back to my initial question...what authority does the Senate have to functionally declare war while calling it something else?