I am taking off from Slate for the month of August, but their writers are popping up all over the place. First, a new political editor is now apparently a semi-regular on the Al Franken Show (Air America), putting forth middle of the road sort of stuff that allows middle of the road sort Franken to be annoyed at the guy giving Bush too much credit.
Second, just this morning, I heard a Slate writer discuss his book (The Genius Factory) on the Noble Prize sperm bank (actually, the three Noble Prize winners who originally signed up backed down, so was mostly a "smart guy" bank) on another Air America show (Satellite Sisters, a syndicated show run by five sisters who join together from various areas, including Russia, by satellite). I actually remember reading his account on the story, asking people who might be willing to share information to write in, and it was interesting to hear an update.
Also, of course, the writers pop up in the NYT a lot -- Dahlia Lithwick sometimes has editorials, and was a guest columnist a while back (the guests tended to be better than the regulars they replaced especially where Thomas Friedman was involved), and often pop up in the NYT Book Review. Today, Christopher Hitchens (okay, stop sneering, you know who you are) actually has a fairly straightforward review of three books involving our relations with 19th Century pirates. Also, Emily Bazelon reviews Peter Irons* book, War Powers: How the Imperial Presidency Hijacked the Constitution.
This caught my eye since I am about to read Presidential War Power by Louis Fisher (written in the mid-1990s), which seems to have a similar point of view, one I generally share. One difference appears to be that Fisher is less supportive of judicial intervention, at least to the extent of forcing the hand of judges to decide. But, Fisher doesn't dwell on the point, and I have yet to read Irons' book -- so that's just a general thought.
Fisher does note an interesting component of the first law authorizing use of the national militia: the President might call out militia when other means are not available to execute the laws of the land. Nonetheless, the President had to receive verification from a federal judge to have such power, and this was done in respect to the "Whiskey Rebellion." Interesting idea.
Anyway, Bazelon suggests Irons' arguments (and liberals like him) are based on a strict reliance on text -- the power of Congress to "declare war." Not necessarily. Taking my views personally, I consider it textual and structural. You cannot just rely on text most of the time, since it has more than one possible meaning, and other text etc. makes it basically impossible. Such is the case here. The problem with "presidential wars" is overall a matter of separation of powers: the Constitution splits the war power among the branches, giving Congress significant responsibility. The President generally "executes" policy set forth by Congress, or at least, that's roughly the idea. The War Clause is but an expression of this basic idea.
I'd add that Bazelon is right to note that our history suggests that controlling presidential discretion in this area was a hard task from the beginning. This was surely the case not only because the executive department was always in session (even while in Idado), while Congress was not, but also because the President ran the military and had to deal with events as they came in an age of poor communication. [Akhil Amar, cited by Bazelon, adds that the executive has intelligence that Congress does not have. She says this matter of factly, which is almost amusing given recent realities. The verification process noted above comes to mind once more.]
So, President Madison was given broad authority to deal with pirate raids, since specific instructions were somewhat impractical. This was a seed of current blank checks, though much narrower and in a different situation. But, really it was 20th Century moves that brought in the current situation.
Sounds interesting.
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* Irons was involved in an interesting project wherein he edited some audio from key oral arguments, which the Supreme Court only accepted after first trying to stop him from doing so. I have the various collections, which are geared for the general public, and are quite educational. My problem is there are enough glaring errors in the commentary (the guy is a law professor and was assisted in at least the first one by a legal assistant) to warrant notice. And, I'm just an amateur.
He also wrote books on the Japanese internment (involved in having the original rulings overturned), the mixed success of integration, and (his preference showing) a book comparing Brennan and Rehnquist. All are fairly enjoyable books, if again, having a clear point of view.