Last Updated on October 3, 2021 by Constitutional Militia
3. And crimes they will be. For “official” assassinations are blatantly unconstitutional. That being so, the matter cannot possibly raise a “political question”. As everyone knows, the doctrine of “political question” derives from Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803), in which he wrote:
The province of the [Supreme C]ourt is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive can never be made in this court.
Of course, though, if the Constitution withholds some power from the President, then he cannot possibly make any claim under color of such a power to “perform duties in which [he has] a discretion”. The President has no “discretion” to violate the Constitution. So a judge cannot decide that a “political question” exists until he has first determined that the Constitution and laws do in fact rightfully empower the President to act in a certain manner.
Now, the theory of the Executive Branch in this case is that, as “Commander in Chief” engaged in fighting a supposed “war on terror”, the President may authorize assassinations of specifically identified “terrorists”. Yet, as the Constitution makes as plain as day, the President is not a “Commander in Chief” in general, ruling over every one and every thing imaginable within the United States, in the manner of a German Führer or an Italian Duce. Neither is he a “Commander in Chief” specifically with respect to “death squads”, in the manner of a Caudillo of some Central American banana republic. Rather, the powers of the President as “Commander in Chief” are narrowly defined, and therefore limited: to wit,
“The President shall 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[.]”
Article II, Section 2, Clause 1 (emphasis supplied).
President is “Commander in Chief” of nothing else, and for no other purposes.
“[T]he Army and Navy of the United States” are entirely constructs of Congress, which alone exercises the powers “[t]o raise and support Armies” and “[t]o provide and maintain a Navy”. Article I, Section 8, Clauses 12 and 13. Absent Congressional legislation, no “Army and Navy of the United States” exist as to which the President can function as “Commander in Chief”. Furthermore, “the Army and Navy of the United States” that do exist are always subject to—indeed, are uniquely defined in their organization and operations by— the power of Congress “[t]o make Rules for the Government and Regulation of the land and naval Forces”. Article I, Section 8, Clause 14. The President can exercise no control over “the Army and Navy of the United States” that ventures even one Angstrom Unit beyond the bounds of these “Rules”, because “the Army and Navy of the United States” do not exist outside of these “Rules”.
Similarly for “the Militia of the several States”. Except that, with respect to the Militia, the President’s authority is even narrower, because he enjoys the status of “Commander in Chief” of the Militia only when the Militia are “called into the actual Service of the United States”. And that can be for three purposes alone: namely, “to execute the Laws of the Union, suppress Insurrections and repel Invasions”. Article I, Section 8, Clause 15. Furthermore, even then, the President cannot exercise untrammeled command, but must abide by whatever rules Congress has “provide[d] * * * for governing such Part of the[ Militia] as may be employed in the Service of the United States”. Article I, Section 8, Clause 16. When the Militia have not been “called into the actual Service of the United States”, they remain State institutions, governed by State officers, and are not subject to the orders of the President at all. See Article I, Section 8, Clause 16.
So, if as “Commander in Chief” the President dares to claim any power to order “official” assassinations, that power must be proven to derive from some exercise of Congress’s powers to “make Rules for the Government and Regulation of the land and naval Forces” and to “provide * * * for governing * * * Part” of the Militia. Where, though, does any legislation, purportedly enacted by Congress under color of those powers, and authorizing anyone to order or to commit “official” assassinations of anyone, appear in the Statutes at Large? Nowhere of which I am aware.
And what if it did? A purported “law” of Congress, identifying a specific individual and condemning that individual to death, would be a “Bill of Attainder”. As Justice Joseph Story explained,
Bills of attainder * * * are such special acts of the legislature as inflict capital punishments upon persons supposed to be guilty of high offenses, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. * * * In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the laws of evidence or not. In short, in all such cases, the legislature exercises * * * what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears or unfounded suspicions. * * * The punishment has often been inflicted without calling upon the party accused to answer, or without even the formality of proof; and sometimes, because the law, in its ordinary course of proceedings, would acquit the offender. The injustice and iniquity of such acts, in general, constitute an irresistible argument against the existence of the power. In a free government it would be intolerable; and in the hands of a reigning faction, it might be, and probably would be, abused to the ruin and death of the most virtuous citizens. Bills of this sort have been most usually passed in England in times of rebellion, or of gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.
Commentaries on the Constitution of the United States (Boston, Massachusetts: Little, Brown, and Company, 5th Edition, 1891), Volume II, § 1344, at 216-217 (footnotes omitted).
For these reasons, the Constitution explicitly, unequivocally, and without exception outlaws all “Bills of Attainder”, both for Congress—“[n]o Bill of Attainder * * * shall be passed”; and for the States—“[n]o State shall * * * pass any Bill of Attainder”. Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1 (emphases supplied). These prohibitions of “Bills of Attainder”, it should be noted, reach all statutes or regulations, “no matter what their form, that apply either to named individuals or to easily ascertained members of a group in such a way as to inflict punishment on them without a judicial trial”. United States v. Lovett, 328 U.S. 303, 315 (1946). See also United States v. Brown, 381 U.S. 437 (1965).
So Congress constitutionally cannot, in the guise of promulgating rules for the governance of the Army, the Navy, or the Militia, authorize the “official” assassination of anyone, whether directly by name or indirectly by reference to membership in some particular group. Thus, to draw a picture that should be familiar to all, in prosecution of “the war on crime” (which has been going on far longer than “the war on terror”), Congress is absolutely powerless to enact a statute providing for the assassination of “Don Corleone” by name, or of “any member of the Corleone Family” by general attribution.
And if Congress cannot constitutionally promulgate rules for the governance of the Army, Navy, and Militia that amount to “Bills of Attainder”, then the President cannot constitutionally purport to enforce such rules in the guise of the “Commander in Chief”.
Neither can Congress delegate a nonexistent power to put out “Bills of Attainder” to the President, for him to employ at his discretion. Nor can the States license their Militia to exercise such a forbidden power, or command their Militia to obey a Presidential order to do so. And inasmuch as the substance of the President’s authority as “Commander in Chief” depends in the first instance upon Congressional legislation, and ultimately upon the existence of the Militia as permanent State institutions, he cannot possibly even claim, let alone put into practice, such a power by himself alone.
And, of course, the President cannot invoke any supposed authority as “Commander in Chief” to require or allow various civilian agencies of the General Government—such as the Department of Homeland Security and the Central Intelligence Agency—to engage in “official” assassinations, because the President is not in any way a “Commander in Chief” with respect those agencies, by constitutional definition. What those agencies are allowed to do, Congress alone determines—except, interestingly enough, that even Congress cannot constitutionally subordinate them to the President as “Commander in Chief”, because the Constitution itself extends that status only to the Army, Navy, and Militia. And Congress cannot constitutionally promulgate any rules for those civilian agencies that amount to, or require or allow them to execute, “Bills of Attainder”. So, inasmuch as agencies such as the DHS and the CIA constitutionally can have nothing whatsoever to do with “Bills of Attainder”, then in and through his administration of them neither can the President.
Finally, the President labors under an explicit constitutional duty to “take Care that the Laws be faithfully executed”. Article II, Section 3. Other than the Declaration of Independence, the most important of these “Laws” is the Constitution itself. The Constitution prohibits any and every “Bill of Attainder”. Therefore, the President can take no action that purports to create, enforce, or countenance in any way a “Bill of Attainder”. Rather, he must bend every effort to stop any “Bill of Attainder” from being prepared, passed, or enforced. In particular, he must prevent everyone in the Army, the Navy, the Militia, the Department of Homeland Security, civilian intelligence agencies such as the CIA, law-enforcement agencies such as the FBI, and all other agencies in the Executive Branch from even proposing, let alone preparing and putting into effect, plans for “official” assassinations. And he must take effective steps swiftly, surely, and severely to punish everyone in any way involved in such schemes. Indeed, if he fails to do so, while aware that “official” assassinations are being plotted within (and perhaps actually being carried out by) the Armed Forces, the Militia, or agencies in the Executive Branch, the President should be impeached, convicted, and removed from office for a “high Crime[ ]” sine die. Article II, Section 4.
So much the Constitution commands on its face, in explicit, unmistakable language. Well, “unmistakable” to anyone who reads it intelligently and in good faith. Apparently, though, no one in high office in the General Government today is able or willing to do so—or “death squads” would not be in the works in the Executive Branch, and their operations would not be excused as a “political question” by the Judiciary. (I leave aside the failure of Congress to impeach and convict Mr. Obama on this ground, because it is arguable that, not being qualified for the office of President at all, he cannot constitutionally be removed by that method from a position he can not, does not, and never did hold.)
What should really give conscientious Americans pause, though, is how much worse this situation is than what the Founding Fathers faced at the time of the Declaration of Independence. For although the Declaration rightly indicted King George III as guilty of “usurpations” and intent upon “the establishment of an absolute Tyranny over these States”, and mercilessly castigated him for “waging War against us”, it never accused him of employing “death squads” to assassinate patriotic American leaders. A tyrant he may have been—a murderous thug, no. That America freed herself from a such a tyrant then, only to come under the heels of such thugs now, is a most telling corroboration of the old adage that “against human stupidity even the gods themselves contend in vain”. For part one click below.
©2010 Edwin Vieira, Jr. – All Rights Reserved.