From wikipedia:

Born in New York, he has written on a wide variety of legal topics, and is known for a generally libertarian approach to issues in legal theory. Epstein is well-known for his arguments against anti-discrimination laws, among other positions. At the Law School, Epstein is known for his cheerful, talkative manner as well as his confident views.

Perhaps his most well-known work is Takings: Private Property and the Power of Eminent Domain, published by Harvard University Press in 1985. In that book, Epstein argues the government should be regarded with the same respect as any other private entity in a property dispute. Though Senator Joseph Biden denounced the book in Justice Clarence Thomas’ confirmation hearings, the book served as a focal point in the argument about the government’s ability to control private property.

Ours is system of delegated powers not one of implied or assumed. Using the implied powers doctrine makes sections of the Constitution wholly unnecessary and “imples” the Founders had no idea what they were doing. Any interpretive scheme that causes one part of the Constitution to make another part superfluous or unnecessary is an invalid methodology (except in the case of amendments OF the Constitution wherein the direct action of the amendment is to override the existing Constitution authority).

Please read Article II of the Constitution. The President is merely Commander in Chief NOT Decider in Chief. The Congress sets the rules for the regulation and governing of the military NOT the President. The President executes not determines.

The Congress is delegated sole authority to declare war but that power does not allow for the suspension of any part of the Constitution (Ex parte Milligan) and by direct example, Article I Section 9, Paragraph 2. The power to “declare war” doesn’t even convey the authority to suspend habeas corpus. The authority to suspend something as basic as habeas corpus had to be explicitly granted because the power to declare war is not broad and all inclusive.

If it’s not explicitly stated, it is not delegated. The branches of the government (created) being subordinate to the Constitution (Creator) may not define even one word of the Constitution. If one word may be defined, all words may be defined and the power and authority of the written constitution becomes meaningless.

Sovereignty lies in the People. These elected officials are our servants NOT our leaders. They are to do our, The People, bidding not their own. We the People have failed to perform our part and have allowed these elected servants to steal authority that was never granted.

You’re right and I could have been clearer. I should have said congress has control of what amounts to, basically, resource management. How those troops are used and their methods of operations is reserved for the presidency.

This is probably going to get me a lot of hate but I think the presidency (regardless of the party in power) has sole authority of the military at all times, not just in times of war. That would include sole authority for FOREIGN intelligence gathering, the handling of FOREIGN military prisoners, troop levels, tactics, etc. Everything except the authority to declare war, which I view as actually putting troops on the ground for any extended period of time.

Weeelllll, so long as you aren’t counting things such as…

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

There are definitely checks and balances even when it comes to the armed forces.

This is probably going to get me a lot of hate but I think the presidency (regardless of the party in power) has sole authority of the military at all times, not just in times of war. That would include sole authority for FOREIGN intelligence gathering, the handling of FOREIGN military prisoners, troop levels, tactics, etc. Everything except the authority to declare war, which I view as actually putting troops on the ground for any extended period of time.

As far as treaties there is an alexander hamilton quote

A treaty cannot be made which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States

which kind of sums it up for me. IMO the constitution clearly gives the president almost sole authority on anything regarding the military and I think the holder of the office should step up and focus on one of the few jobs he actually has.

We agree completely on the big picture, that the government was given very select powers and authority and they should stick to those without using them to find new ones all the time. In regards to control of the military however, I think there needs to be one absolute authority solely so we know who to blame/credit and, or as hamilton put it “charge”.

But Bush & Co. are arguing that the president can take the country to war without first consulting Congress (Yoo has argued that a declaration is a mere formality), that only the president can end wars, and that the president can pull out of treaties that Congress agreed to. The founders (including Hamilton) were very clear about the dangers of investing the warmaking power in one man.

There’s also the matter of how the Bush administration has defined the war on terrorism. If the president is all-powerful in wartime, and we’re in an indefinite war that extends into a borders, they’re essentially arguing that the president has infinite and unchecked power far into the foreseeable future, so long as he can find some way to tie a power he wants to national security.

You don’t see anything wrong with that?

“THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone.”

Not only was it obvious to Hamilton, he believed it was obvious to everyone. Your quote from #69 was a portion of an entire piece regarding the nature, or character, of the presidency but even there I think it’s pretty clear what Hamilton was suggesting. When coupled with 70 and 74 it becomes very clear. The President has the absolute authority to control the military. The congress was relegated to providing resources and, probably the most important power, declaring war. I also agree with Hamiltons reasoning why one person should be in charge…

Back to Federalist 70:

“But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage or misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.”

It is a whole lot easier if you believe a war is being mismanaged to replace one person, the commander-in-chief, than to have to replace an entire body of elected officials in order to change course.

But if that’s the case, he ought not throw around terms such as “unitary executive” with such abandon. Because (if one accepts your interpretation), he too is an advocate of the Unitary Executive.

Just one who is rather weaker than Yoo, Addington, and Cheney would have us believe.

That is EXACTLY the arguement Radley is making: “Federalist 70’s ‘unity’ argument was a call for one-man presidency, not a one-man government.”

The Yoo/Addington/Cheney theory, by contrast, is about the scope of the President’s power, as well as its nature. I think they are wrong in arguing, for example, that the President as Commander-in-Chief has the power to detain American citizens without trial or recourse to a writ of habeas corpus. But that’s not about whether the executive power is unitary; that’s about what the executive power is in the first instance.

Now it so happens that, if you asked them, Cheney, Yoo, and Addington would undoubtedly argue for a very strong executive power vested in a single person — the President. (Unless Addington discovered some novel argument for vesting it in the Vice President.) Logically, though, those are separate questions. One can imagine a weak unitary executive or a strong executive power that is widely dispersed. The mere fact that John Yoo believes something does not make it false.

As a libertarian, you really ought oppose attempts to marry the legislative, executive, and judicial powers within administrative agencies. And as a writer, you should use language with greater clarity.

Given your professed beliefs, you really ought to support strict separation-of-powers principles, and that entails a unitary executive. Now, just to be clear, the Cheney/Addington/Yoo theory of what the President’s powers are is crazy. But there’s nothing at all crazy about arguing for a unitary executive who exercises the powers the President actually has.

Could Congress, for example, give the President’s pardon power to the Attorney General? Turn conduct of an ongoing declared war over to a congressional committee? Require the approval of a commission of law professors before exercising the veto power? If you answer “no” to any of those questions, then at least to some extent you believe in the theory of the Unitary Executive.

History shows that this country was founded on the idea of the opposite of the British crown, monarchies, etc. Centralization of power is what a lot of people fought against and died for, and they gave us this “new idea” of a country founded on principles of natural law and a government of the people by our consent. What has happened over the past 150+ years is pissing on the graves of those that gave us the principles on which this country was founded.

Read the Constitution some time, and read the Declaration of Independence. It’s pretty clear what the Founders were angry about. The Constitution clearly says that funding for wars lies with the House, and the declaration of war must be reauthorized every 2 years (my memory could be wrong).

“That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”

One can also reasonably assume that were he alive today, Hamilton would find their interpretation of his words to be disgustingly out of context. It sounds to me like they’ve made a monarchist out of him, when in fact Hamilton was really just a proponent of a reasonably strong centralized government.