Re: TownHall.com – 2/18/2008 – “Judges hold no rank in the chain of military command” – Phyllis Schlafly

The fact that no (or few) Supreme Court justices have military experience is just as immaterial as the fact that no one in the military command has experience as a Supreme Court justice.

Constitutionally, the Supreme Court is not in the military chain of command, but sits along side of Congress, both of whom have significant military authority.

The President has the somewhat ambiguous role of “commander in chief of the army and navy” [Article III Section 2 # 1] and presumably of the marines and air force --- although strict Constitutionalists might want to argue that if the Founding Fathers wanted the President to be commander in chief of the air force they would have said so. Anyone believing in limited powers of government understands the roles of chief executive and commander in chief to be limited to by the laws of Congress within the constraints of our Constitution.

Congress has several military roles under the Constitution: (1) “To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water” [Article I Section 8 #11]; (2) “To raise and support armies” [Article I Section 8 #12]; (3) “To provide and maintain a navy” [Article I Section 8 #13]; and especially (4) “To make rules for the government and regulations of the land and naval forces” [Article I Section 8 #14]. Anyone believing in limited powers of government understands that Congress’ power is limited to these enumerated powers granted to it and by the powers explicitly excluded from it by the Constitution.

According to our Constitution, “The judicial power shall extend to all cases in law and equity, arising under this Constitution, and the laws of the United States, and all treaties made, or shall be made, under their authority” [Article III Section 2 #1]. That means if someone sues the government over the validity of a military regulation, the Court has final say. If, in the Court’s opinion, the regulation violates existing law, the regulation becomes unenforceable. If, in the Court’s opinion, the regulation and/or the law that authorizes it violate the Constitution, the regulation and/or the law becomes unenforceable. Final say on such issues is not decided by supporters of either side of the issues but by the Court. You don’t have to like the Court’s decisions and you don’t have to like the way the Constitution provides for making such decisions, but it is the undeniable conclusion of the spirit and the letter of the law that the Court has the right and duty to make such decisions. For those of you who feel that the final authority on what the Constitution says is the chief executive, you are supporting a form of government that has a name of its own --- a dictatorship.

What is Schlafly asking for?

She is asking that the military should decide what is necessary for it to do to protect us. That’s like saying the economy is best left to the experts (the professional economists). She seems to say that if the military wants to test how a new weapon will effect people, it can just go about in secret doing so on people who are given no choice but to participate in the test whether they know about it or not. Given unlimited authority to decide what is necessary, the military (like any other organization or individual) will confuse necessity with convenient without giving adequate consideration to others. The military, in times of emergency, should be given some leeway and the benefit of doubt, but that limit must be set by Congress and the Constitution, as interpreted by the Court, and not by the military or its commander in chief.

Schlafly asks “What if a federal judge had ordered President Harry S. Truman not to drop the atom bomb on Japan because of its environmental impact”. First of all, during WW-II we were in a declared war with the foreign power we bombed; the seriousness of current sonar testing pales in comparison --- the need to test new sonar now and as proposed is not a “national emergency” --- and during WW-II there was no such environmental law that would have prohibited bombing. So even if a suit were filed no judge would have allowed the suit and even if some judge did issue such an injunction the order would have been overturned immediately by a higher court. Secondly, if a law of Congress made such bombing illegal, hopefully the Court would tell the President to go to Congress and get the law changed, but unless faced with a national emergency, obey the law until it was changed.

Schlafly brings up the issue of a fence across the US/Mexican border. Note that the fence was eventually built because Congress passed a law allowing it to be built without further court interference. Exactly what Congress can do with the sonar test issue if it so chooses --- the courts would certainly uphold such a law and the sonar would get tested legally. As an aside, the pressure against the further extension of the US/Mexican border fence and related security measures across the length of the border is not just from environmentalists but from local land owners who would loose access to the river’s banks and water, and by industrial and agricultural interests who would loose access to Mexican migrant workers and face delays in transportation of materials and products at border crossings.

Schlafly says that “Congress, including many Democrats, has already stripped jurisdiction from federal courts over the detaining of enemy combatants in Guantanamo Bay, Cuba” and “When the Supreme Court found a way to bypass that law, Congress, including many Democrats, passed a new law to reinstate the withdrawal of jurisdiction more broadly, and that law is now before the U.S. Supreme Court”. So far the Court itself has decided how far it will or will not step into the Guantanamo issue. It is unclear that Congress has the power to limit the Court’s authority on this issue since the Court’s power is explicitly provided in the Constitution, and it is only the Court, at their option, who can decide whether or not the military actions at Guantanamo were legal, especially if not explicitly authorized by law. Of course, if Congress changes the law that is not inconsistent with the Constitution, the Court would base its decisions on the new law.

Schlafly says “When the anti-military MoveOn.org published its insulting attack against U.S. Army Gen. David H. Petraeus last fall in the New York Times, the Senate voted 75-25 to condemn that ad. But talk is cheap, and Senate resolutions do not have the force of law.” Great. Schlafly thinks no only should the military be allowed to do anything they want in the name of national security, but that anyone who dares “insult” the military should be subject to the force of law.

Schlafly seems to be saying that the executives who are charged with enforcing the law have the sole right to interpret the law and to decide if their actions are constant with the law, and that anyone who criticizes the persons or actions of the executives should be punished for their criticism. Does Schlafly understand that in so doing she has completely rejected the foundations of American democracy?