April 01, 2007

Timetables and the Constitution

Jim Antle, guest-blogging at Jeremy Lott's place:

I didn’t think the Iraq invasion was in our national interest yet I also oppose unconstitutional encroachments on the commander in chief’s power. I think the timetable requirement in the supplemental falls into that unconstitutional category. So who should I believe? My man Walter Jones is pro-timetable; my man Ron Paul voted against the bill. I am inclined to agree with Paul. Am I right?
The short answer is yes. For the longer answer, we can turn to Chief Justice Salmon Porter Chase in Ex parte Milligan:
Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns.
In Milligan, the court ruled that the Lincoln administration overstepped its authority by trying antiwar demonstrators in a military tribunal rather than in the regular courts. (This was in heavily-Copperhead Indiana, and they feared they couldn't get an Indiana jury to convict). Chase and the three judges who joined him concurred in the judgement that the tribunal was improper and that Milligan should be tried in civilian court, but they felt that the majority's implication that Congress not only hadn't approved the tribunal but actually couldn't approve it was wrong. Given that Chase was arguing for maximal Congressional power, his view provides a useful heuristic on the limits of that power. Surely, the bill that the Democrats have passed "interferes with the command of the forces and the conduct of campaigns," and is thus unconstitutional.

I would also add that Jim needn't limit his opposition to the bill to constitutional grounds; hamstringing the troop surge is bad policy, too, and you don't have to be a fan of the invasion to think so. See Mickey Kaus on Anthony Zinni ("Against the War, For the Surge").

Posted by John Tabin at April 1, 2007 07:39 PM