WAR AGAINST THE LAW

“The War Powers Resolution is unconstitutional,” Mike insisted loudly over the din in the bar. He and Socrates had been arguing about whether President Trump had the authority to bomb Iran’s nuclear facilities without congressional approval. I was present to witness the argument, and heard the following: 

“How so?” Socrates asked. 

“The President is the Commander-in-Chief of the armed forces. That means he gets to decide when and where he will send our military, and what operations it will engage in. It’s none of Congress’s business.” 

“Oh, I see,” Socrates replied. “I thought you were referring to the fact that the law gives the President a sixty day window to commit our troops before he can be reined in by Congress.” 

Mike laughed. “No, why would I be saying that?” 

 

“Because that’s what the statute says.” [1] 

“That’s why I think it’s unconstitutional. The President is in charge of the armed forces, and we have separation of powers in this country.”  

“We do,” Socrates replied. “And aren’t those powers specified in the Constitution?” 

“Sure.” 

“And to which body is given the power to declare war?” 

“To Congress. But you’re missing the point.” [2] 

“What point?” 

 

 “That the President is Commander-in-Chief of the armed forces.” 

“Okay, I’m starting to see now. You’re saying that the President shouldn’t be restricted at all in his use of the military, whereas, when I first heard you, I thought you were objecting because the War Powers resolution gives the President the ability to introduce the military into hostile situations for sixty days before he has to consult with Congress.” 

“No,” Mike laughed. “My objection is that Congress has any say in the matter at all.” 

“Well, then, what does the Constitution mean when it says that Congress has the power to declare war?” 

“Just that. Congress has the power to declare war. But that doesn’t mean that the President doesn’t have the power to direct the military as he sees fit.” 

“How doesn’t that interpretation of the Constitution render the power of Congress to declare war a meaningless formality?” 

  

“Perhaps it has something to do with international law. Ask the Framers.” 

“I can’t ask the Framers, seeing as they are dead. But doesn’t current international law prohibit military force unless a country is attacked or is authorized by the UN Security Council?” [3] 

Mike laughed dismissively. “Well, if you want to pay attention to the United Nations Charter.” 

“But isn’t the United Nations Charter an international treaty to which the United States is a party?” [4]  

“Yes.” 

“And doesn’t the Constitution provide that treaties entered into by the United States are to be considered the law of the land?” 

“Yes.” 

“But was the United States attacked by Iran?” 

I could tell that Mike was starting to become uncomfortable. “No.” 

“And did the UN Security Council authorize an attack on Iran?” 

“No.” 

“So, how was the attack on Iran not totally unlawful?” 

“Look, Socrates,” Mike said with a tone of frustration. “Iran was building a nuclear bomb. That’s totally unacceptable.” 

“Didn’t U.S. Intelligence tell us that wasn’t so?” [4] 

“The President thought otherwise.” 

“Then why couldn’t he make his case before the Security Council if he was so certain?” 

“Why do you think the President should ask permission from the Security Council?” 

“Because it’s the law?” 

“Look, I don’t go in for this radical socialism that you’re espousing.” 

“Honoring treaties and obeying the law are radical socialism?” 

“They are if they’re used as an excuse to go against the interests of the United States.” 

“Are you saying that the Constitution is against the interests of the United States?” 

“I didn’t say that.” 

 

 “I thought you did when you said the United States should violate the UN Charter. But aren’t you aware that at the Constitutional Convention the original wording of the War Powers clause was that Congress was empowered to ‘make’ war, rather than ‘declare’ war?”  

“I was.” (The way he replied made me think that he really wasn’t) 

“And do you know why they changed it to ‘declare’?”

“I can’t say that I do.” 

“It was because they wanted the President to have the power to repel sudden attacks.” [5] 

“Well, now,” Mike said with an air of triumph, “doesn’t that make my point?” 

“How so?” 

“They wanted to make it clear that the President had the power to act militarily without asking Congress for permission.” 

“In the case of sudden attacks only. Otherwise Congress was given the war power. That’s why Congress said in the War Powers Resolution that its purpose is to “fulfill the intent of the framers of the Constitution of the United States…,” [6] and that the “President in every possible instance” should “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances….” [7] Do you see what I’m trying to convey?” 

“I understand your point,” Mike said. “But I think that the President should be the one to decide what to do with the military.” 

“I’m more comfortable with such decisions being collective ones,” Socrates replied. “But I suppose you can always write your Representative in Congress and suggest that the Constitution be amended.”

 

--Jack Quirk

THE BEST THING POSSIBLE

“That would be the worst thing possible if the baby lives,” a female voice exclaimed at the table next to us. 

Socrates flinched at that, as did I, so I wasn’t surprised when Socrates addressed the couple at the table. “Pardon me,” he said. “I don’t want to be intrusive, but are you talking about the Adriana Smith pregnancy case?” 

The man at the table replied, “Mind your own business.” He then turned to the woman and said, “Yeah, everyone’s talking about the baby coming through it as it was some kind of miracle. But, all things considered, that would be a terrible outcome.” 

I hadn’t followed the Adriana Smith pregnancy case, but I was highly disturbed by what these people were saying. Not being as polite and cultured as Socrates, I said, “Look, now, you’re talking about a baby dying as a good thing here in the coffee shop where everyone can hear you. That’s about the most offensive thing that a person can say, and you’re making it our business by saying it. So take it somewhere else where you won’t offend people.” 

At that the man stood up with his fists clenched. I stood up as well, but the woman grabbed the man by the arm, saying, “Tim! Stop it! Sit down!” 

Tim obeyed, and I too sat down to see Socrates laughing. “I’m glad you’re entertained,” I told him. 

I thought that the couple would simply get up and leave, but it turned out that the woman was prepared to engage. Looking at Socrates she said, “Yes, we are talking about the Adriana Smith matter. I don’t want you to think that I enjoy the idea of babies dying in general.” 

“That’s what I thought,” Socrates said. 

“Excuse me,” I said, “but what is the Adriana Smith matter?” 

The woman looked at me, but she didn’t betray what she was thinking by her expression. I turned to Socrates who was shaking his head. “You know, newspapers are still pretty cheap, relatively,” he said. 

“But I have to learn how to read if they’re going to be of any use to me,” I joked. 

But Socrates looked at the couple, and said, “He isn’t kidding.” Then he turned to me and said, “Adriana Smith was a woman in Georgia, who died because of a medical emergency. She was nine weeks pregnant at the time. But the hospital told her family that due to Georgia’s strict abortion laws, she would have to be kept on life support until the baby could be delivered. It seems that upset at least some of her relatives.” [1] [2]  

“And it was because of Georgia’s patriarchal six week abortion ban,” the woman chimed in. 

“But this didn’t really involve an abortion did it?” Socrates asked. 

“No,” the woman said. “But it still involves the same patriarchal power structure that wants to take control over women’s bodies.” 

“So, you would say that Adriana Smith had the right to control her own body,” Socrates said. 

“Of course she did,” the woman replied. 

“But isn’t it true that the decision to keep Adriana Smith alive so that the baby could be delivered was made after she was already brain dead?” 

“Yes.” 

“And she died rather suddenly. So, we never got to hear what Adriana would have wanted about whether to keep her body functioning in order to preserve the life of her child. Isn’t that right?” 

“I’m sure she would have preferred to be allowed to die in peace.” 

“But she was already dead. The question of whether she would die in peace or not had already been answered. Or am I missing something?” 

“Okay,” the woman replied. “But her relatives should have had a say.” 

“You can’t mean that,” Socrates said. “Isn’t the whole idea behind the so-called right to choose is that women should have control over their own bodies?” 

“Of course.” 

“Well does that mean that the right to choose descends to her relatives?” 

“It should.” 

“But you’re concerned about patriarchy. What if the right to choose descends to a male?” 

The woman laughed derisively. At this point, Tim interjected. “You know, you’re really a jack ass, you know that? Ignore him, Leticia. He’s just a misogynist.” 

“Whatever I am,” Socrates said, “I still can’t understand why it would be better for the baby to die.” 

“Don’t you get it?” Tim said. “If the baby survives that will give misogynists like you an argument that the fetus was alive all along, and has some right to life.” 

“Now you’ve really got me confused,” Socrates said, laughing. “Why wouldn’t a fetus be alive?” 

With that, Leticia stood up. “Let’s get out of here, Tim,” she said. “I don’t really want to be in this company.” 

“Right,” Tim said, and they both got up and left the coffee shop. 

After they left, something funny occurred to me, and I started laughing. 

“What are you laughing about?” Socrates asked.

“I’m just thinking about that kid growing up and coming to realize that his family wanted to kill him,” I replied laughing harder. 

“Jacob, you’re a sick, sick man,” said Socrates.

 

—Jack Quirk

NO WE CAN'T

Socrates and I always meet for breakfast at a local café on Saturdays, and, over time, it has become a kind of private school for me. The subjects have been wide ranging, though lately national controversies have taken center stage. I will confess that I have suffered from a kind of authoritarian streak in that I have a tendency to support whoever enjoys governmental power at the time. I have historically been a guaranteed vote for incumbents. But Socrates has, over time, and with great patience on his part, urged me to view contemporary issues more critically. I am uncertain as to how successful he has been, but I can happily report that he has not yet tired of my company.  

There was a time when I thought I might best him in debate. But I have come to realize that is impossible for someone at my intellectual level. I still try, however, not with any expectation of victory, but for the experience of having Socrates point out the errors in my logic and in my appreciation of the facts. 

But I was surprised a couple of days ago when I brought up the matter of the mass deportations taking place, when Socrates challenged my belief, or, perhaps, my assumption, that the United States government had the power to deport illegal aliens. 

“Let me ask you this,” Socrates said. “Does the Constitution tell the federal government what it may not do, or what it may do?” 

“Both,” I replied, being confused by the question. 

“Let me put it this way,” Socrates responded. “Does the Constitution set forth the powers of the federal government?” 

“It does.” 

“But what would be the point of that if the federal government had any power that wasn’t prohibited to it?” 

“That’s a good point,” I said. “But the Constitution also specifically forbids the government from doing certain things; establishing a religion for example.” [1] 

“It does. But haven’t you ever had the experience of explaining something to somebody, but also clarifying what you don’t mean so as to avoid misunderstanding?” 

“I imagine I have, even though I can’t recall an instance of it at the moment.” 

“So imagine that the prohibition against establishing a religion wasn’t in the Constitution, and Congress decided to enact a law that prohibited any products made by Catholics to be shipped in interstate commerce. Couldn’t Congress make the claim that it had the power to do so due to its right to regulate commerce among the states?” 

“You’re right. The Commerce Clause has quite a reach as it turns out. But I think such a law would overwhelmingly be found offensive.” 

“It would be offensive to Catholics, anyway. But respect for the religion of others hasn’t always been as widely practiced as it is today. And even now it isn’t an attitude that is universal. If such a law was passed regarding Muslims, can you imagine the objections being somewhat muted in certain quarters?”

“I can.” 

“And, indeed, don’t we see efforts these days to require Catholic hospitals to perform abortions?” [2] 

“We do. But I think that pertains more to the constitutional guarantee of the free exercise of religion.” 

“You’re right. But my point is that religious freedom isn’t as widely respected as you might think.” 

“I can’t argue with that.” 

“And do you see my larger point that when the Constitution prohibits an action by the government that it is to clarify the boundaries of a power that the Constitution has given it?” 

“I do.” 

“That leads to the question: where does the Constitution authorize the federal government to regulate immigration, and deport someone on the sole ground of being a noncitizen?” 

To this I laughed. “Come on, Socrates. I know that the Supreme Court has upheld that governmental power.” 

“True. But where in the Constitution did it find that power?” 

I thought I had him here. “I specifically remember that it empowers Congress to “establish an uniform Rule of Naturalization….” 

“That’s naturalization, the means by which foreigners obtain citizenship. But what does that have to do with immigration?” 

“Isn’t it part and parcel of the same thing?” 

“Well, can there be, logically, immigration without naturalization?” 

“Yes, it happens all the time.” 

“And can there be naturalization without immigration?” 

“That never happens, does it?” 

“I don’t know. But could it conceivably happen if Congress allowed it?” 

“I guess so.”

“So, how can the two be the same thing, if one can exist without the other?” 

“Okay, so they’re not the same thing. But hasn’t the Supreme Court upheld the right of the federal government to regulate immigration?” 

“What are you referring to?” 

“All I know is that the Supreme Court has held that the power rests on the constitutional provision pertaining to naturalization.” [3] 

“But we just discussed that, didn’t we? Immigration and naturalization are two different things.” 

“That isn’t all. The Court has held that the federal government has an inherent power to control and conduct foreign relations.”

Socrates laughed. “Inherent power? What the hell does that mean? The Nazis believed they had an inherent power to put people in ovens. Did something come down from Mount Sinai explaining this concept that I missed?”

“Are you really going to say that the federal government has no authority to expel aliens?” 

“As a punishment for crime, certainly. But just because someone isn’t a citizen? I don’t see it.” 

“The power has to be somewhere.” 

“Why? I suppose the states retain the power if they want to use it.” 

“Then the right wing states would use the power and the left wing states less so.” 

“You’re probably right.” 

“Then the law would be different depending on what state you were in.” 

“That’s true of a lot of things.” 

I thought for a moment, and realized I had nothing left to say on the matter, except to warn, “You know, Socrates, you’re going to wind up in prison. And that’s if you’re lucky.”  

“Life’s an adventure,” Socrates said.

 

—Jack Quirk