The obstacles to litigating the grave legal questions arising from the United States' military operations against Iran can be traced to the Court's refusal to confront similar questions about Vietnam.
Okay, one thing you forgot that changes everything. The 1965 Gulf of Tonkin resolution. That was the equivalent of a declaration of war. Thus vietnam, while badly done and possibly ill-advised. was totally legal.
"But for as much mischief as Sullivan allows, consider me one of those who thinks we’d be a lot worse off without it than we are with it."
It doesn't have to be either/or, and Black's concurrence points to a much cleaner approach: absolute immunity for speech about public officials' conduct of their duties, and that's it.
The squishy "public figure" test has become an essentially self-fulfilling defense for major media outlets (e.g., "if NYT is talking about you, you're by definition a public figure"); an objective guardrail limiting the doctrine to public officeholders (could also consider including declared candidates for office) would eliminate the overwhelming majority of the mischief Sullivan allows without really undermining its core purpose of holding the government to account.
Name a single country you consider to be a successful military power that allows any of its judges, let alone a judge as crazy and unhinged and ideological as William O. Douglas was in the last stages of his career and life, to enter injunctions against the use of its military power.
I don't like the invasion and bombing of Cambodia either, but this is outside the competence of judges and the legal system and the result of allowing judges this power is that our politicians would ignore their orders and eliminate judicial review, because judges cannot run the military.
Yes. The only proper solution to Congress' failure to do its job is to demand that Congress do its job. Asking the other branches to step in to fill the void merely compounds the problem.
As a retired emergency medicine physician I'd like to offer a different perspective. I didn't spend my workdays searching for interesting patients to whom I could offer medical care. The emergency department reality is we have to manage everybody who comes to our door. I'll admit that sometimes I wondered why I "got chosen" to care for somebody so ill but couldn't waste time dwelling on that if I was to do the best I could for that person. Excusing myself from a difficult issue was abandoning the patient and that was never a possibility. Thus, when I hear of people who have risen to important levels of society and are tasked to manage hard problems, like our Supreme Court Justices or Congresspeople, sidestepping an issue because it is too hard or might cause a loss of power, or whatever, I feel abandoned by them. We the People need to hold them to a higher standard.
Those who argue (absurdly) “that these legal constraints [in the supreme law of the land] are irrelevant [merely] because they are not judicially enforceable—that is, because it’s virtually impossible for anyone to walk into court and use these legal arguments to stop the U.S. operations” have their heads stuck, at best, in the sand.
Judges’ mere failure or refusal to fulfill their oaths to support and defend our Constitution against all domestic enemies hardly renders the supreme law of the land irrelevant. At most, it merely highlights that more law is necessary and proper to regulate the powers vested in the executive or judicial branches.
For that very reason, our Constitution expressly provides for new law to be made because experience reveals it to be necessary and proper (it vests in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution [all Congress’s] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). Our Constitution also reserves to voters the power to replace legislators who fail to enact legislation that is necessary and proper.
Congress can and should enact laws, for example, (1) limiting the power of the president to pardon crimes for which he could be impeached, convicted and removed from office, (2) requiring process of law for impeachments and trials (like Congress did for civil and criminal trials) and (3) require impeachment, conviction and removal of executive or judicial officers who commit high crimes or high misdemeanors.
This discussion and reminder of the events leading up to the disaster of US involvement in the Vietnam War – perceived by others as the American War or the last stage of Vietnam’s War of Independence from its French colonial masters – raises the question of the similarities between the “Best and the Brightest” (the title of David Halberstam’s book) and the “Worst and the Dumbest”, one characterization of the current leaders in Washington, DC. In both cases ignorance of the foreign players, their histories and motivations, and the use of lies (or to be generous horrendous misunderstandings) to justify US intervention lie at the heart of the matter. In Vietnam, escalation of the conflict despite its growing evidence of failure led to increasingly disastrous decisions , often overriding the advice of career diplomats and others who were familiar with the histories and experiences of the Vietnamese and other foreign actors, notably the many centuries of relations between Vietnam and China, and the determination of the Vietnamese (like the American colonies) to throw off the yoke of overseas domination.
As I recall, the Gulf of Tonkin resolution was passed by Congress almost unanimously as the legal basis for war, a few days after an attack on US warships by the North Vietnamese that never actually happened. I admit I am not sure when this fact became apparent or was known to the President and others at the time, or whether there was any attempt to promptly correct the misrepresentation when it became known.
Under Article I, Section 8 of the Constitution, an increasingly abused foundational document – am I correct in this “originalist” interpretation ? - Congress has an exclusive, constitutional power to initiate a legal state of war between the United States and another nation. Perhaps the current assaults on Iran can be construed by some abstruse or contorted legal analysis as falling short of a state of war, as being merely a “special military operation” to quote a contemporary precedent from a foreign regime, or a defensive necessary preemptive response to a clear and present existential threat. But otherwise to most of us if it kills like a war (civilians and people of all ages as well as military), and targets and destroys the infrastructure of a society like a war (food supplies, sources of energy, health care and educational facilities etc.), then it’s a war.
It is surely the responsibility of Congress to exercise this right, although today’s members of Congress are incapable or unwilling to see any violation (of the Constitution), hear about any violation, or speak or vote against any violation in sufficient numbers to be effective. And the President is unrestricted in his use of the “Get Out of Jail Free” card of claiming there is an Emergency which enables, or even requires him to take whatever steps he wants using his unique and in some people’s views divinely blessed - at least by the Christian God, even if not by the Allah that most people in the region profess their allegiance to - “knack,” or unique insights and knowledge , even if they involve contradictory justifications and explanations from one day or even hour to the next. They are simply further proof of his unique skill and genius in keeping enemies of America nonplussed and off balance. And friends too, but that is only an unfortunate , regrettable side effect, and these friends are not being supportive anyway. Where is Winston Churchill whe we need him? He did champion the “unconditional surrender” of the Axis powers to end WW2. And he also made the historic “We shall never surrender” speech to the House of Commons in June, 1940 when Britain stood alone, and the US Ambassador Joseph Kennedy was convinced that the Nazis would soon be in London.
It would be helpful if the Supreme Court had over the years weighed in with some definitive rulings about what is legal and what is illegal about the procedures through which (or that have been ignored) momentous decisions have been made and acted upon that have led to the country’s entry into wars. I would not expect the Court to be a leader in the matter of War Powers. But I would also not have expected and deplore its decision about the absolute immunity a President enjoys for actions taken while in office that lie within core constitutional powers, and presumptive immunity for all official actions (what is covered by the word “official” in practice is unclear - does it cover actions for which he was convicted when not President as well as actions involving the use and/or withdrawal of federal government resources and now the assualts on Iran?). The immunity decision reinforces any “Get Out of Jail Free” card with a “Stay Out of Jail Free” trump card (no pun intended).
Kagan also wrote a paper criticizing Sullivan!
Judge Walker is probably the most interesting judge on DC Cir. I think he'd be a decent nominee for SCOTUS, though it's politically unlikely.
Okay, one thing you forgot that changes everything. The 1965 Gulf of Tonkin resolution. That was the equivalent of a declaration of war. Thus vietnam, while badly done and possibly ill-advised. was totally legal.
The piece specifically mentions it, but ok.
"But for as much mischief as Sullivan allows, consider me one of those who thinks we’d be a lot worse off without it than we are with it."
It doesn't have to be either/or, and Black's concurrence points to a much cleaner approach: absolute immunity for speech about public officials' conduct of their duties, and that's it.
The squishy "public figure" test has become an essentially self-fulfilling defense for major media outlets (e.g., "if NYT is talking about you, you're by definition a public figure"); an objective guardrail limiting the doctrine to public officeholders (could also consider including declared candidates for office) would eliminate the overwhelming majority of the mischief Sullivan allows without really undermining its core purpose of holding the government to account.
Name a single country you consider to be a successful military power that allows any of its judges, let alone a judge as crazy and unhinged and ideological as William O. Douglas was in the last stages of his career and life, to enter injunctions against the use of its military power.
I don't like the invasion and bombing of Cambodia either, but this is outside the competence of judges and the legal system and the result of allowing judges this power is that our politicians would ignore their orders and eliminate judicial review, because judges cannot run the military.
Yes. The only proper solution to Congress' failure to do its job is to demand that Congress do its job. Asking the other branches to step in to fill the void merely compounds the problem.
Great article, thanks Steve.
As a retired emergency medicine physician I'd like to offer a different perspective. I didn't spend my workdays searching for interesting patients to whom I could offer medical care. The emergency department reality is we have to manage everybody who comes to our door. I'll admit that sometimes I wondered why I "got chosen" to care for somebody so ill but couldn't waste time dwelling on that if I was to do the best I could for that person. Excusing myself from a difficult issue was abandoning the patient and that was never a possibility. Thus, when I hear of people who have risen to important levels of society and are tasked to manage hard problems, like our Supreme Court Justices or Congresspeople, sidestepping an issue because it is too hard or might cause a loss of power, or whatever, I feel abandoned by them. We the People need to hold them to a higher standard.
Those who argue (absurdly) “that these legal constraints [in the supreme law of the land] are irrelevant [merely] because they are not judicially enforceable—that is, because it’s virtually impossible for anyone to walk into court and use these legal arguments to stop the U.S. operations” have their heads stuck, at best, in the sand.
Judges’ mere failure or refusal to fulfill their oaths to support and defend our Constitution against all domestic enemies hardly renders the supreme law of the land irrelevant. At most, it merely highlights that more law is necessary and proper to regulate the powers vested in the executive or judicial branches.
For that very reason, our Constitution expressly provides for new law to be made because experience reveals it to be necessary and proper (it vests in Congress the power to “make all Laws” that are “necessary and proper for carrying into Execution [all Congress’s] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). Our Constitution also reserves to voters the power to replace legislators who fail to enact legislation that is necessary and proper.
Congress can and should enact laws, for example, (1) limiting the power of the president to pardon crimes for which he could be impeached, convicted and removed from office, (2) requiring process of law for impeachments and trials (like Congress did for civil and criminal trials) and (3) require impeachment, conviction and removal of executive or judicial officers who commit high crimes or high misdemeanors.
This discussion and reminder of the events leading up to the disaster of US involvement in the Vietnam War – perceived by others as the American War or the last stage of Vietnam’s War of Independence from its French colonial masters – raises the question of the similarities between the “Best and the Brightest” (the title of David Halberstam’s book) and the “Worst and the Dumbest”, one characterization of the current leaders in Washington, DC. In both cases ignorance of the foreign players, their histories and motivations, and the use of lies (or to be generous horrendous misunderstandings) to justify US intervention lie at the heart of the matter. In Vietnam, escalation of the conflict despite its growing evidence of failure led to increasingly disastrous decisions , often overriding the advice of career diplomats and others who were familiar with the histories and experiences of the Vietnamese and other foreign actors, notably the many centuries of relations between Vietnam and China, and the determination of the Vietnamese (like the American colonies) to throw off the yoke of overseas domination.
As I recall, the Gulf of Tonkin resolution was passed by Congress almost unanimously as the legal basis for war, a few days after an attack on US warships by the North Vietnamese that never actually happened. I admit I am not sure when this fact became apparent or was known to the President and others at the time, or whether there was any attempt to promptly correct the misrepresentation when it became known.
Under Article I, Section 8 of the Constitution, an increasingly abused foundational document – am I correct in this “originalist” interpretation ? - Congress has an exclusive, constitutional power to initiate a legal state of war between the United States and another nation. Perhaps the current assaults on Iran can be construed by some abstruse or contorted legal analysis as falling short of a state of war, as being merely a “special military operation” to quote a contemporary precedent from a foreign regime, or a defensive necessary preemptive response to a clear and present existential threat. But otherwise to most of us if it kills like a war (civilians and people of all ages as well as military), and targets and destroys the infrastructure of a society like a war (food supplies, sources of energy, health care and educational facilities etc.), then it’s a war.
It is surely the responsibility of Congress to exercise this right, although today’s members of Congress are incapable or unwilling to see any violation (of the Constitution), hear about any violation, or speak or vote against any violation in sufficient numbers to be effective. And the President is unrestricted in his use of the “Get Out of Jail Free” card of claiming there is an Emergency which enables, or even requires him to take whatever steps he wants using his unique and in some people’s views divinely blessed - at least by the Christian God, even if not by the Allah that most people in the region profess their allegiance to - “knack,” or unique insights and knowledge , even if they involve contradictory justifications and explanations from one day or even hour to the next. They are simply further proof of his unique skill and genius in keeping enemies of America nonplussed and off balance. And friends too, but that is only an unfortunate , regrettable side effect, and these friends are not being supportive anyway. Where is Winston Churchill whe we need him? He did champion the “unconditional surrender” of the Axis powers to end WW2. And he also made the historic “We shall never surrender” speech to the House of Commons in June, 1940 when Britain stood alone, and the US Ambassador Joseph Kennedy was convinced that the Nazis would soon be in London.
It would be helpful if the Supreme Court had over the years weighed in with some definitive rulings about what is legal and what is illegal about the procedures through which (or that have been ignored) momentous decisions have been made and acted upon that have led to the country’s entry into wars. I would not expect the Court to be a leader in the matter of War Powers. But I would also not have expected and deplore its decision about the absolute immunity a President enjoys for actions taken while in office that lie within core constitutional powers, and presumptive immunity for all official actions (what is covered by the word “official” in practice is unclear - does it cover actions for which he was convicted when not President as well as actions involving the use and/or withdrawal of federal government resources and now the assualts on Iran?). The immunity decision reinforces any “Get Out of Jail Free” card with a “Stay Out of Jail Free” trump card (no pun intended).