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Given that Pres. Obama would be operating under his military authority as Commander-in-Chief if he did order such a drone strike, then it might very easily stil
by mpyne 13y ago
Given that Pres. Obama would be operating under his military authority as Commander-in-Chief if he did order such a drone strike, then it might very easily still be considered a war crime.
The U.S. Constitution doesn't explicitly talk to homicide but U.S. legal code does, and there's no requirement that your victim be a U.S. citizen. So even with the drone example it's not clear-cut that Pres. Obama has the legal authority to kill any foreigner he wishes.
- dllthomas 13y agoThe parent said "unconstitutional", not "illegal"
- mpyne 13y agoThe Constitution established the Congress and its legal precedent, including the superiority clause restricting International matters to Federal law. If you obey a law under U.S. Code or the Statutes-at-Large, it's because of the power granted to Congress, the President, and the Supreme Court by the Constitution. Or in other words, things that are illegal are illegal because they're also unconstitutional (assuming it's withstood the scrutiny of the Supreme Court, if it makes it to that level).
- dllthomas 13y agoThat's an unusually broad and not terribly useful definition of "unconstitutional".
- mpyne 13y agoThe point is that the President falls under the laws (plural) of the land, not just the "initial commit".
- dllthomas 13y agoI wholeheartedly agree with that point. I don't think it's made well by muddying definitions.
- btilly 13y agoHow so unusually broad? Congress and the President derive their authority from the grants of power in the Constitution. If the courts cannot find an argument from the Constitution giving them authority, or if the courts accept an argument from the Constitution forbidding a particular action, then that is unconstitutional. Put an equivalent way, Congress and the President only have authority if there is both an argument from the Constitution saying that they have authority, and if no argument from the Constitution is accepted by the courts saying that the action they want to engage in is prohibited by the Constitution. (There is a grey area where the President does things forbidden by Congress. That can get interesting, particularly since the Supreme Court tends to try to stay out of it. If you want examples, examine conflicts between Congress and multiple presidents over the War Powers Act.)
- dllthomas 13y ago"Unconstitutional" usually means "directly prohibited by the Constitution" as opposed to "indirectly prohibited by the constitution." We already have a word for "directly or indirectly prohibited by the Constitution": illegal. The distinction is relevant when we need to know where to look to answer a question, what to modify to effect a certain outcome, or whether a law is permissible.
- btilly 13y agoYou are drawing a distinction that does not legally exist. See http://en.wikipedia.org/wiki/United_States_v._Lopez http://en.wikipedia.org/wiki/United_States_v._Lopez and http://en.wikipedia.org/wiki/United_States_v._Morrison http://en.wikipedia.org/wiki/United_States_v._Morrison fo examples of cases where a law was not directly prohibited by the Constitution, but part of it was still ruled unconstitutional because there was no argument from the Constitution granting Congress the authority to pass that law. (In theory you could argue that it was prohibited under the 10th. But the arguments made by the court would apply regardless of the presence of the 10th.)
- dllthomas 13y agoThat's orthogonal. My point is that calling something that is prohibited by law but could, without changing the constitution, not be prohibited by law "unconstitutional" simply because that's where the authority fundamentally lies is not meaningful and is not what most people mean when they say "unconstitutional."