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Balanced Fare: We Report, You Deride

Saturday, August 10, 2002




Jason Rylander Reads the InstaPundit Too

Well, of course, I read it. I just don't remember posting three straight times on comments from the Insta-site. My own little trifecta. Anyway, Jason says this:

"Meanwhile, everyone's other favorite law professor Glenn Reynolds has posted a letter from legal scholar William Van Alstyne which makes a strong case that waging war against Iraq without congressional authorization would be unconstitutional. Glenn even agrees, which for someone who I think leans in favor of removing Saddam by force is saying something."

I won't compound his astonishment by saying that I, too, currently favor removing Saddam but would like a full public airing and would not want Bush to proceed with a pre-emptive war that did not have broad public support. Rather, my question for Glenn, Jason, or anyone interested, is "How exactly does the InstaPundit's post lead to the "unconstitutional" conclusion?"

To summarize: The Insta-man posts as follows:

"IS INVADING IRAQ CONSTITUTIONAL? William Van Alstyne, a professor of constitutional law at Duke who I respect very much, has his doubts, as expressed in this letter responding to questions from the Senate Appropriations Committee, which he was kind enough to email me:

...Third, and most recent among the resolutions you enclosed...."


The third point Van Alystyne makes (or is it the third resolution he reviews?) is that the post-Sept 11 resolution passed by Congress authorizes the use of force for states harboring terrorists connected to 9/11, and that, absent compelling new evidence, Iraq would not seem to be such a state. Fair enough, but this resolution is almost certainly not the exclusive basis for believing that the Commander-in-Chief can order troops into action. Now, because he is a crafty fellow, Reynolds opened with a question. He has not yet published Van Alstyne's other points (another post notes that he is seeking permission to do so), nor does he address the generic war-making power of the President. Reynolds does offer this caveat:

"I generally agree with Van Alstyne on this, and on Executive use of force generally, though I note that our view of these issues has little in the way of judicial support, or Executive or Legislative support for that matter. Though I think the Framers intended otherwise, Presidents have generally enjoyed a lot of freedom where the employment of troops is concerned."

My conclusion: I think Reynolds went further with his rhetorical question than with his actual rhetoric. Jason seems to have gone a bit further still. Which doesn't mean they are wrong - just that I don't see the evidence here.






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