Tag Archives: War Powers Resolution of 1973

Judge Brett Kavanaugh on separation of powers (Part 2)

There has been a lot of commentary about Judge Brett Kavanaugh’s law review articles on the investigation, indictment and prosecution of a president, but I believe you should see selected excerpts from his writings for yourself.

Here is a link to his 2009 Minnesota Law Review article Separation of Powers During the Forty- Fourth Presidency and Beyond Copyright © 2009 by Brett M. Kavanaugh (selected excerpts):

Based on my experience in the White House and the Justice Department, in the independent counsel’s office, in the judicial branch as a law clerk and now a judge, and as a teacher of separation of powers law, I have developed a few specific ideas for alleviating some of the problems we have seen arise over the last sixteen years. I believe these proposals would create a more effective and efficient federal government, consistent with the purposes of our Constitution as outlined in the Preamble. Fully justifying these ideas would require writing a book—and probably more than one. My goal in this forum is far more modest: to identify problems worthy of additional attention, sketch out some possible solutions, and call for further discussion.

I. PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS

First, my chief takeaway from working in the White House for five-and-a-half years—and particularly from my nearly three years of work as Staff Secretary, when I was fortunate to travel the country and the world with President Bush—is that the job of President is far more difficult than any other civilian position in government. It frankly makes being a member of Congress or the judiciary look rather easy by comparison. The decisions a President must make are hard and often life-or-death, the pressure is relentless, the problems arise from all directions, the criticism is unremitting and personal, and at the end of the day only one person is responsible. There are not eight other colleagues (as there are on the Supreme Court), or ninety-nine other colleagues (as there are in the Senate), or 434 other colleagues (as there are in the House). There is no review panel for presidential decisions and few opportunities for do-overs. The President alone makes the most important decisions. It is true that presidents carve out occasional free time to exercise or read or attend social events. But don’t be fooled. The job and the pressure never stop. We exalt and revere the presidency in this country—yet even so, I think we grossly underestimate how difficult the job is. At the end of the Clinton presidency, John Harris wrote an excellent book about President Clinton entitled The Survivor. I have come to think that the book’s title is an accurate description for all presidents in the modern era.

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The House votes to continue a war that it has not even authorized

I posted back in May, When will Congress act on an AUMF for ISIS in Iraq and Syria?, and more recently, Congress once again abdicates its war powers. Congress has yet to debate and to vote on an Authorization for Use of Military Force (AUMF) against ISIS in Iraq and Syria, long past the time limitations prescribed by the War Powers Resolution of 1973.

But today Congress did manage to find time to debate and to vote on continuing a war that it has not even authorized. We have gone down the rabbit hole again. House rejects withdrawal from ISIS war:

us-forces-afghanistan-AP-640x480The House voted resoundingly Wednesday to keep troops stationed abroad fighting the Islamic State of Iraq and Syria (ISIS) despite the absence of a formal congressional authorization for military action against the group.

In the first vote of its kind since the Obama administration began airstrikes ten months ago, the House defeated a resolution requiring the president to remove troops within the next six months. The vote was 139-288. [House Vote 370: Yes: Gallego, Grijalva, Kirkpatrick – No: Franks, Gosar, McSally, Salmon, Schweikert, Sinema.]

Nineteen Republicans and 120 Democrats voted for the measure. Rep. Justin Amash (R-Mich.) voted “present.”

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