Bush’s Iraq plan may be unconstitutional.
In November, President Bush and Iraqi Prime Minister Nouri al-Maliki outlined a “long-term relationship” for the United States to defend Iraq’s security. But experts believe that not only is this agreement unprecedented, but also potentially unconstitutional:
President Bush’s plan to forge a long-term agreement with the Iraqi government that could commit the US military to defending Iraq’s security would be the first time such a sweeping mutual defense compact has been enacted without congressional approval, according to legal specialists. […]
But there is now also growing alarm about the constitutional issues raised by Bush’s plan. Legal specialists and lawmakers of both parties are raising questions about whether it would be unconstitutional for Bush to complete such a sweeping deal on behalf of the United States without the consent of the legislative branch.
Rep. Dana Rohrabacher (R-CA), a former Reagan administration official, accused the Bush administration of “arrogance” for not consulting with Congress about the pact.
UPDATE: In December, Sen. Joe Biden (D-DE) wrote to Bush, requesting “a definitive statement from you affirming that Congress must authorize or approve any ’security commitments’ the United States negotiates with Iraq.” He has not yet received a response.
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Wait… The U.S. has a congress?
http://www.tshirtinsurgency.com
January 25th, 2008 at 9:58 am“Rep. Dana Rohrabacher (R-CA), a former Reagan administration official, accused the Bush administration of “arrogance†for not consulting with Congress about the pact.”
Why is Sen. Rohrabacher only gettign upset now?
Why didn’cha complain about this 7 years ago? Or are you trying to pretend you care about the Constitution only AFTER Pres. Bush has shat upon it?
January 25th, 2008 at 9:59 amRep. Dana Rohrabacher (R-CA), a former Reagan administration official, accused the Bush administration of “arrogance†for not consulting with Congress about the pact.
Why would Bush care what Rohrabacher thinks? He doesn’t appear to care what anyone thinks about what he does.
There is a problem on the Iraqi side also. Maliki doesn’t have the authority to make this kind of a deal without the approval of the Iraqi parliament either. And they are really pissed.
January 25th, 2008 at 10:03 amThe agreement might be unconstitutional? Why should Bush 2.0 start worrying about the constitution now?… they’ve already made it a shell of its former self. After seven years of this, I don’t expect anything less… the big question though, will the Congress’ ego get so bent out of shape that they call him on it? I doubt it but one can always hope… wait, that’s Obama’s line.
Mr. Purple
January 25th, 2008 at 10:04 amWow - something about the Administration’s Iraq policy is UNCONSTITUTIONAL?
That’s CRAZY TALK!
Next you’ll be telling us that WATER is WET!
January 25th, 2008 at 10:04 amSo, what the hell is any one going to do about it?…impeachment’s off the table,,bush and company have had a free pass on all crime’s so far and with queen palosi running interference for the reich winged warmonger’s why bothering to even put a thread up on more crime’s..It’s all one big party in DC..The drunk’s, druggies, lier’s and thieves are running the show..After 7 year’s of more of the same why even bother, they will run the clock out and take the money with them….Will the last enabeler or wrong doer please turn the light’s out when they leave, the tax payer’s can’t afford the power bill…..Blessings..Peace.
January 25th, 2008 at 10:05 amBush adminsitration? Arrogant? Nah… couldn’t be.
Total disregard for Congress? No… say it ain’t so.
Ignoring the Constitution? Never….
January 25th, 2008 at 10:09 amHey I have an idea….get Leahy to write a letter!
January 25th, 2008 at 10:10 amAnd why is there any ambiguity about this? It’s not possibly unconstitutional - it IS unconstitutional.
Article II, Section 2:
January 25th, 2008 at 10:10 amShit, Congress can’t even figure out how to enforce their own committees’ subpoenas, so why even entertain the thought that they would be capable of dealing with this…
January 25th, 2008 at 10:10 amWH lawyers: “SHHHHHH….nobody mention the word “treaty” and we can finagle this deal. SHHHH….”
January 25th, 2008 at 10:12 amwhat the fu*k is it gonna take to get rid of these goddamn traitors?
a blowjob?
January 25th, 2008 at 10:13 amIt’s too bad that GDumbya didn’t make a personal deal with Saddam five years ago.
You know, something like challenging him to a cage match. If GDumbya won, Saddam would have gotten to keep his WMDs. If Saddam won, he would have had to give up his WMDs.
Just think of all the death, destruction and money that could have been saved.
January 25th, 2008 at 10:16 amShit, Congress can’t even figure out how to enforce their own committees’ subpoenas, so why even entertain the thought that they would be capable of dealing with this…
Comment by And Yet…
Exactly!
January 25th, 2008 at 10:16 amThe President is parsing words on this (natch) by specifically avoiding the moniker “treaty”. Obama, Clinton and Edwards should agree to a pact and announce it publicly that ANY such agreement made between Bush and Maliki will be null and void come January ‘08. Cut and dry…defunded..bye bye…sorry Bushco.
January 25th, 2008 at 10:16 am#12 only an elephant can give a blowjob to an elephant….
January 25th, 2008 at 10:17 amThe entire Bushitler has been unconstitutional from the day the SCTUS issued its worst ruling since the Dred Scott decision.
January 25th, 2008 at 10:18 amWH lawyers: “SHHHHHH….nobody mention the word “treaty†and we can finagle this deal. SHHHH….â€
Comment by Badmoodman — January 25, 2008 @ 10:12 am
Oh right. It’s not a treaty committing U.S. troops to a long-term security pact with a foreign government, it’s a Gentleman’s Agreement. Or perhaps a Memorandum of Understanding. Or maybe it’s a Post-It Note of General On-The-Same-Pageness.
Maybe even a Beer Coaster of Mutual Best Friends Foreverness. That’s what it is.
January 25th, 2008 at 10:18 amshould be SCOTUS-sorry about that.
January 25th, 2008 at 10:19 amI beg to differ, Witch1-
January 25th, 2008 at 10:19 amI know at least three donkeys (Reed/Pelosi/Rockefeller) whove been blowing elephants for years now.
#20 Correct follow up if one think’s they are Dem’s…I don’t..They are traitor’s….Blessings
January 25th, 2008 at 10:22 amMegalomaniac. Bush did say he felt running the country would be oh, so much easier if ours was a dictatorship and he was dictator.
January 25th, 2008 at 10:29 amSo why would Bush worry about the constitution or Congress? After all, in Bushworld, the constitution is just a “g*dd*mn piece of paper” and Congress is irrelevant.
January 25th, 2008 at 10:33 amIn news today, President George Bush announced that he was modifying the constitution under his powers as commander-in-chief. Under the new modification, President Bush will assume position as the Supreme Leader of the United States with a life time term of office. When asked whether this constituted an unconstitutional amendment to the constitution, Supreme Leader Bush noted that the constitution was modified and not amended and thus the amendment process was not required>
In additional news today:
New modifications to the constitution eliminated congressional authority to impeach, over ride vetoes or advise and consent on certain executive appointments. Additionally, all legislation must originate in the executive branch.
Citibank and a consortium of other lenders saw the Supreme Court uphold new credit card clauses giving them the right to apprehend and force labor without pay from those falling behind in payments as well as harvesting and selling organs from debtors considered in serious default. The ACLU had filed suit on behalf of the orphans of the Kennedy family who lost their mother and father when their hearts were harvested for use by the Cheney family. The Supreme Court dismissed the ACLU’s 13th amendment involuntary servitude argument by noting that the debtors had “voluntarily” signed the credit card agreement in 1992. It was their fault for not having read all 192 inserts in the credit card bills to catch the new clause.
State authorities announced that water boarding has increased the number of convictions to 100% of those arrested for crimes. The Minister of Information noted that citizens may sleep safer now that this effective interrogation tool can be utilized by law enforcement.
January 25th, 2008 at 10:52 amBush: “I am the War President, the Dicta.. the Decider. What is Decider decides is not unconstuctional.. unconsidual….. unconstable…. un…. gawddamn piece of paper.”
January 25th, 2008 at 11:01 amIf Mr. Bush signed the pact then once Mr. Bush leaves office the pact is no longer valid. Since the Senate must ratify treaties, and an open-ended commitment to defense of another country is certainly the stuff of treaties, then a treaty which has not been ratified by the Senate is not in force. We don’t need a lot of hand wringing because the next administration can simply pull back our forces.
January 25th, 2008 at 11:24 amMeanwhile, the pundits have you believe that this agreement will tie the hands of the next President. If the agreement is done without the advice and consent of Congress, as stated in the Constitution, a future President would be stupid (or a coward) to not state, today, that any such agreement will be null and void in their Administration. Someone should tell the Iraqis that this agreement will not be honored if it is not handled appropriately based on our Constitution.
January 25th, 2008 at 11:24 amComment by JMOHR — January 25, 2008 @ 10:52 am
Waitaminnit — the ACLU still exists in this scenario?
January 25th, 2008 at 11:48 amBut the Constitution is just, “a damned piece of paper”. Right?
Sieg Heil
January 25th, 2008 at 11:53 amWhy get approval from a Congress who will only rubberstamp his decision anyway. The democrats with a small “d” doesn’t have the guts to stand to the President with the lowest approval rating of any President in history. The aren’t going to do anything except pay lip service to this just like everything else they let pass. This has got to be the weakest Congress in history. If the situation was reversed, there is no way in hell the republicans would go along with a weak democratic President. Everyone of you should contact you weak congressman and senator and tell them to get so balls.
January 25th, 2008 at 11:54 amWow - something about the Administration’s Iraq policy is UNCONSTITUTIONAL?
That’s CRAZY TALK!
Next you’ll be telling us that WATER is WET!
Comment by toasterhead — January 25, 2008 @ 10:04 am
Nah. If water is WET — the terrorists win!!!!!
January 25th, 2008 at 12:12 pmAs much as I want the Arrogant SOB gone, his executive orders rescinding and investigated for fraud and high crimes and misdemeanors. Article II of the constitution clearly gives the President the ability to enter into “EXECUTIVE AGREEMENTS” which by defination are not “TREATIES.”
In the history of US Constitutional Law there has never ever been an IMPLIES TREATY. The thing cannot exist. It might a bastich of a president splitting the finest of hairs, but IT IS NOT AND CANNOT BE UNCONSTITUTIONAL.
HOWEVER, instead of jumping on the Bush is an evil arrogant (and ignorant) jerk, start calling your congressman/senator and ask them to enact FEDERAL LAW invalidating the EXECUTIVE AGREEMENT. As between FEDERAL STATUTE and EXECUTIVE AGREEMENTS, FEDERAL STATUTES control.
Now our lovely ass of a president can’t enter into an unconstitutional agreement (aka one that violates either the laws or constitution) but just because this one looks like a treaty, sounds like a treaty — Its NOT A TREATY. And most likely due to Separation of Powers, the SCOTUS can’t adjudicate executive acts and/or create and “IMPLIED TREATY”
as much as it sucks, he has the power to do this — AND ITS NOT UNCONSTITUTIONAL, its just not.
It might spit in the face of the spirit of the constitutional, but it ain’t unconstitional.
Less than a year and counting.
The next president has the power, to end/terminate/withdraw/stop any and all EXECUTIVE AGREEMENTS and/or EXECUTIVE ORDERS.
The current congress has the power to create federal statutes tha invalidate any Executive Agreement.
(I suppose, I should be ready for the flames that will surely be thrown my way now……..)
January 25th, 2008 at 12:12 pmHe shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;
Wonder if the chymp in chief can do away with this via signing statement…
January 25th, 2008 at 12:15 pm#33; You ask how he can do it, easy, just tell Nancy Pelosi and Harry Reid to sit down and shut up, that’s how. They are so weak, I get sick when I see them on TV. I’m a conservative Democrat who hates republicans, but Pelois and Reid, make my blood boil. I’ve never seen two weaker people in my life. They are a toothless tiger who’s afraid of his own shadow.
January 25th, 2008 at 12:24 pmWill the last enabeler or wrong doer please turn the light’s out when they leave, the tax payer’s can’t afford the power bill….
Hilarious, and sadly true at the same time. Good one WitchyOne!
January 25th, 2008 at 12:26 pm#32 ~ Yeah, I’m going to take you to task on your claim that somewhere in Article II it clearly states anything about executive agreements.
Here’s the text of sections 2 - 4, you tell me where you find anything about executive agreements.
Are you Bartlebee, come back to make shit up again?
Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
January 25th, 2008 at 12:32 pm#36 - No not Bartlebee. just tryingto be informed. which as you might think means reading before you know what you are talking about.
more easily summarized via wiki, but feel free to read the cases below. as well as any Law journal arctile.
An executive agreement can only be negotiated and entered into through the president’s authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, or (3) from a prior act of Congress.
For instance, it is as commander-in-chief that the President negotiates and enters into status of forces agreements (SOFAs), which govern the treatment and disposition of U.S. forces stationed in other nations.
Agreements beyond these competencies must have the approval of Congress (for congressional-executive agreements) or the Senate (for treaties).
see Missouri v. Holland, 252 U.S. 416 (1920) & Goldwater v. Carter, 444 U.S. 996 (1979)
January 25th, 2008 at 12:41 pmUPDATE: In December, Sen. Joe Biden (D-DE) wrote to Bush, requesting “a definitive statement from you affirming that Congress must authorize or approve any ’security commitments’ the United States negotiates with Iraq.†He has not yet received a response.
Which will earn Biden a hearty “Go Cheney yourself, whatcha gonna do about it?” from the Chimperator….
Cheers,
January 25th, 2008 at 1:19 pmThanks for the legal citation. You are correct in your new definition.
Iwas taking issue with this quote
“Article II of the constitution clearly gives the President the ability to enter into “EXECUTIVE AGREEMENTS†which by defination are not “TREATIES.â€
January 25th, 2008 at 1:20 pmMaybe the branch that gives consent is whatever fricking branch of gov’t Cheney is in this week.
January 25th, 2008 at 1:24 pmThe agreement sought by Bush clearly goes beyond the usual SOFA agreement concerning the disposition and treatmet of US troops outside of the United States. Contrary to the statements in #37, the Courts tend to hold disagreements between the executive and congress as to whether the president has exceeded his authority in foreign policy as a political question. Indeed, the Goldwater case now stands as the textbook example for defining a political question. Although a specific resolution by Congress would tend to move the issue in the direction of congress.
Congress should act. We have seen too much power assumed by the executive branch by essentially ignoring the letter and the spirit of the constitution. Does any one seriously believe that prior to this administration that:
1. The definition of water boarding as torture would even be debated?
2. The Patriot Act ever would have been tolerated?
3. A long term miliary defense pact not only against foreign but also against internal political threat would be concluded by executive agreement?
4. The doctrine of aggressive, pre-emptive war would become US policy?
The country has taken a very wrong turn on its path through history. Bush and the necons have used typical Orwellian political speak to attempt to initiate these changes. It is time to stop the trend.
January 25th, 2008 at 1:34 pm#41, yes dumbass’ deal may go further than a SOFA, but its still clearly in the executives exclusive power to make and create foreign policy.
is good foreign policy - with Dubbya in charge, you can pretty much bet, that it’s not, as none of his policies have ever been “good” in any sense of the word.
#37 your right that my language might have been a “short cut” conclusion, but it is in essence true. Art II outines both the express and implied powers (which invariabely are further explained by SCOTUS as well as curtailed as outside the scope of the executive power) of the Executive. so I stand by it.
It’s hard sometime to know thas AGREEMENTS such as this rest with the President, but the check on this power is to have congress speak/act/overrule. Which given the track record of this session we are pretty much stuck with this deal until 1/20/09.
January 25th, 2008 at 1:48 pmOK, jrp001, I agree with your basic premise. Yes, Congress needs to get involved and take control of this madman’s agenda…
January 25th, 2008 at 2:00 pmjrp001: I will have to disagree that this is within the power of the president in conducting foreign policy. Obviously, the President must be the face of foreign policy. However, the constitution clearly saw a dividing point at creating treaties. An executive agreement is not meant to create a long term security agreement or mutual defense pact. I question your experience or knowledge of constitutional law since you seriously misrepresented the holding in both the Holland and Goldwater cases. Your overly broad definition of the president’s foreign policy authority would reduce the power of Congress to nothing. Let me see some specific examples of long term security agreements that have been created by executive order alone that would even come close to the Bush proposal. You also mistate the constitution and the law by suggesting that congress must speak/act/overrule. The treaty clause permits the president to act as the negotiator and point man on foreign policy. However, congress must ratify treaties before they become the law of the land.
January 25th, 2008 at 2:05 pmWhat do you mean “may” be unconstitutional — Bush, his war, his deceit, his lies, his secrecy and abuse of power are all unconstitutional!
January 25th, 2008 at 2:05 pm.
Congress is upset because they allowed and tolerated being usurped years ago. They deserve what they get. But do Americans deserve cowards for Congress?
.
January 25th, 2008 at 2:28 pmJMOHR - busy (read: swamped) at work, will try to address your thoughts as soon as can.
in the mean time, could you let me know what foreign policy setting powers Congress has besides the “approving treaties.”
January 25th, 2008 at 3:14 pm“The Constitution is just a God-damn piece of paper.” -George W. Bush
January 25th, 2008 at 4:45 pmFirst, I am a lawyer. As a former JAG stationed overseas, I have a passing familiarity with SOFAs and treaty obligations. Your statement of the basis of the President’s powers in comment #36 seems to be taken directly from Wikepedia. An excellent starting point from laymen, but hardly an authoritative basis for understanding a complex area of law.
Second, you clearly have no concept of what the Holland case or the Goldwater cases encompassed. I have read the original test of the Supreme Court cases. The Holland case involved the state of Missouri challenging a migratory bird treaty negotiated by the Department of State under a delegation of congressional authority. The legal priniciple was whether the reservation of certain rights to the states under the 10th amendment prevented the treaty from regulating (amongst other things) the hunting of migratory birds. Nothing in the holdings of the case or obiter dictum of the opinion addresses core competencies of the president in foreign policy. Goldwater v. Carter answers nothing since the court declined jurisdiction noting that the dividing line between Congressional and Executive authority in treaties is a political question.
Third, you lack a historical understanding of the treaty power under the constitution. The Senate was to advise and consent to the treaty. The founders honestly believed that they would have role in negotiating treaties. Strange but not actually unbelievable in those days. Obviously impractical nowdays.
Fourth, Congress impacts foreign policy on every single day. Let us start with the worst case situation - War and the power to declare it. Then there are treaties. Then there are Congressional/executive agreements on less earth shattering issues. Then there is the power of the purse.
The president conducts foreign policy for practical reasons:
United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936). As stated in that case:
“…the President alone has the power to speak or listen as a representative of the Nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates.”
However, the President does not have a monopoly on setting foreign policy. Congress has the power to declare war, to defund military ventures, to impeach the president, to block arms sales to foreign countries, consent to the appointment of ambassadors and the Secretary of State and many other things in addition to approving treaties. Indeed, the fact that the Supreme Court held that the boundary between the President’s authority in foreign policy and the Senate’s authority under the treaty clause would be a politcal question actually acknowledges that there is a shared authority.
The president simply exceeds his authority by extending long term security guarantees to a foreign government. There simply have not been such agreements in the past. Not only does it usurp the authority of Congress, but it also places future executives in the position of either accepting open ended political agreements or abrogating such agreements relied upon by foreign governments. It is to avoid exactly such a situation that the Senate must advise and consent upon such agreements.
January 25th, 2008 at 5:21 pmJMOHR - just a real quick response.
1) not a layman
January 25th, 2008 at 7:30 pm2) don’t presume to know what knowledge I have or don’t have
3) I may have dumbed down/quoted/simplified a bit much.
4) all of the Congressional tools you mentionedd are NOT (other than Treaty/Declare war) express constitutional powers that allow Congress to SET/DECIDE/ENGAGE in foreign policy; rather it are checks on the power of the executive — AKA congress canact (pass a law/overrule a veto) if it wishes to (which it hasn’t in the past 7-8 years) if it wants to retrain/revoke/change Presidential agreements, etc.
5) Should congress get some balls, they could certainly influence and/or force the executives hand, but its not an express power to set policy.
6) It unfortunately really is all about semantics. If he chooses to call it EXECUTIVE AGREEMENT, its not a TREATY .
7) Dumbass’ long-term agreement (undefined) with the Iraqi government to commit the US military to defending Iraq’s security may well exceed his contitutional powers, but that cannot be decided until such time as Congress decides revoke/rescind such executive actions… I have no doubt the Supreme Court would deny cert because it is a “polictical question”
Seems to me that Bush hasn’t let a little thing like the Constitution stand in his way much over the past seven years — and the fact is that by and large, he’s been getting away with it because Congress has more often than not chosen not to use the power granted them by the Constitution to compel or coerce him into respecting the system of checks and balances. Knowing this, what makes them think that he’ll toe the line this time? The Congress has teeth, but a whining or even a barking dog isn’t that much of a threat and especially not when said dog puts its tail between its legs whenever the other dog so much as blinks. It’s the snarling dog that really means business.
January 25th, 2008 at 10:01 pmConstitution? What Constitution?
January 26th, 2008 at 10:35 am