Robert H. Jackson Quotes

When the Senate was debating the Gulf of Tonkin Resolution, which would empower the President to take "all necessary measures" to repel any armed attack on U. S. forces, Senator Morse was one of only two Senators opposing the resolution:

Bybee, then and Assistant Attorney General, took the legal position that the President could order the torture of enemy combatants regardless of Congressional laws prohibiting torture. Two years later the memo’s recipient, Alberto Gonzalez, in his confirmation hearings as Attorney General, repudiated the memo, then stating that the President was not above the law and had to obey the laws of Congress that apply to the military.

This concept of Presidential powers greatly expanded the traditional power of the Presidency. To one degree or another this became the view of every president who followed until George W. Bush who went one large step further. He maintained that the President could do that which was specifically prohibited by law if the purpose was to perform a Constitutional duty.

President George W. Bush had ignored a federal law and tapped the phones of Americans without probable cause and a warrant issued by a court. The President’s defenders argued that the President, as Commander in Chief, has the Constitutional responsibility to lead the military and protect the nation. Intelligence gathering is part of military activity. Therefore the intelligence gathering is a Constitutional duty and the Congress, under the separation of powers doctrine, may not interfere with the President’s Constitutional Duty to conduct intelligence. Under this doctrine, the President need not obey laws that he believes impinge on his management of the war effort and the defense of the nation. Most legal scholars believe that this argument is nonsense, but the George W. Bush administration has stated the doctrine and it was the subject of much litigation.

The President had authorized the NSA to spy Americans who might have been suspected of being themselves or being in contact with terrorists without obtaining permission of a court including the Foreign Intelligence Surveillance Act (FISA) special court that had been established for these cases. Instead the administration argues that it was inherent in the powers of the Presidency in time of war.

President George W. Bush had ordered NSA agents to bug the phones and email of American citizens who might have been talking with an overseas party or e-mailing them out of the country. The administration thought that American citizens might be part of terrorist sleeper cells or unwittingly were aiding terrorists. The law prohibited such activity—where American citizens were involved—without getting a court order. However, the President claimed that he had the inherent power as commander in chief of exempting the court requirement. Others maintained that even the President is not above the law. What was the big puzzle was that there was a secret court Congress had established just for such cases, but the administration instead decided to bypass the court.

President Abraham Lincoln had pocket vetoed his own party's reconstruction bill in the midst of an election year.

President Coolidge had nominated Charles Beecher Warren as Attorney General but the Senate with his own party in the majority rejected the nomination as Warren had been closely connected with the Sugar Trust. Coolidge, refused to accept the Senate decision and renominated Warren and threatened that if the Senate would not confirm Warren, be would give him a recess appointment after the Senate adjourned:. The statement was written for a Senate speech but never delivered as such. Warren was rejected by the Senate a second time, and the President indeed offered him a recess appointment, but Warren refused.

This was the President’s original role regarding legislation. However, in the 20th century, Presidents have become more active and suggest laws and often initiate the process and then end it by signing the law that he suggested and shepherded through the Congress. But this was never the vision of the Founding Fathers, but since it is not addressed in the Constitution is not an unconstitutional process.

Alberto Gonzalez, White House Counsel and later Attorney General who was forced to resign and David S. Addington, Counsel to the Vice President, had come up with a novel view of the powers of the presidency. They argued that since the President is the Commander in Chief, in a war situation or intelligence gathering thereto, has the Constitutional responsibility for that function, he need not obey any laws of Congress as in the conduct of the war Congress would be impinging on the Constitutional separation of powers which itself was prohibited by the Constitution. The argument did not find any significant legal support but for a while the George W. Bush White House behaved as if this were the law, despite the fact that even in the American Revolution and the War of 1812 Congress passed laws regulating the conduct of the armed forces as is provided for in other parts of the Constitution. Yet even Goldsmith would allow the President some powers that many think are unconstitutional and/or belong to Congress. See {32436}.

See {635809} for an additional view on this act.

The president did not act purely on his own. The operation in Libya was a NATO operation, not a U. S. operation. All NATO countries unanimously approved the enforcement of the No Fly zone and it was approved by the Security Council of the United Nations, Technically the operation was not war. NATO and the United States was asked to support the no fly zone by the Government of Libya which we and the other countries all recognized at the time. However, since the later part of the 19th century, America has debated exactly who and under what conditions can commit U. S. Troops to hostilities. The prerogatives of Congress in the war powers debate have eroded to the Presidency in the last 2 centuries and some, like Paul feel that the older balance should be restored.