Every few years one side or the other complains that the President is over-reaching his authority. This almost naturally leads to the debate over “Implied Powers,” and whether or not they (the implied powers) exist (they do) or not?
In 2014, the world faced the specter of ISIL (or ISIS or IS) as the Islamic State overran vast swaths of territory in Iraq and Syria (the “Levant”) and begun to impose its version of Islamic Law on the local inhabitants who really just wanted to be left alone. When they (the locals) wouldn’t go along with the insane Islamic nut jobs, they (ISIL) began to commit mass murder on an industrial scale.
Reactions ranged from the idea that we – the United States – had a “moral” duty to step in, to the position that we should stay the heck out of yet another war in Asia. was the Islamic state an actual threat to the United States or its “national interests?”
How do we define the “National interests” that guide our foreign policy? Most of all, what does the Constitution have to say about not just the powers involved, but what, if anything, about the process?
Sausage making, as the process has been described, is not really pretty, and generally speaking not at all interesting.
But if you want breakfast, you have to break a few eggs. And grind up some pigs…
This past week the Chief Justice of the US Supreme Court ordered a stay, delaying the start of the trial of the case, Juliana v US. this is the second time that there has been a stay in the famous case, which seeks to force the US Government to pursue policies that would “keep warming in check.” Both the Obama Administration and the Trump administration (which submitted a 103-page argument to the Court asking for the stay) have argued that the case is problematic, in that it violates the separation of powers in the Constitution.
The plaintiffs, supposedly a group of young people, claim that their civil rights have been violated and they have demanded policy changes that would “protect their civil rights” from the effects of global climate change in the future.
This raises a number of questions, one of which is, what exactly is a “civil right?”
The Congress shall have Power To …regulate Commerce…with the Indian Tribes…
ARTICLE I, SECTION 8, CLAUSE 3
That’s how it always begins. Very small.
A man living in Oklahoma has a girlfriend who has an ex-boyfriend who gets into it with the man. In a gruesome crime, the ex-boyfriend is murdered, his genitals left on his chest on the side of the road. Not being a criminal mastermind, the man, Murphy, is caught. As there is little doubt and much evidence that he did it, he is tried and convicted of capital murder. The sentenced is death.
Not so fast…
The crime was committed by a member of the Creek Nation. The victim was also a Creek. And it appears that the crime was committed on Creek land. That being the case, the state of Oklahoma would have no jurisdiction, it would be a Federal case, requiring a Federal 9not State) prosecution. Because of the laws and agreements with the Tribes, such a crime cannot have a death penalty unless the tribe agrees to it, which they almost never do.
Not so fast… was it on Creek land? The Treaty of 1831 says that it is, but subsequent treaties (1966) make it less than clear. Did Congress intend to take the land where the crime occurred away? Did they actually do it? Did somebody make a big mistake and forget a sentence in a document more than a century ago?
And if it is Creek Land, what does that mean to the State of Oklahoma? What if the State of Oklahoma, as we’ve known and loved it since 1907, isn’t the state of Oklahoma? what if it’s only half the size it is today?
Absurd, you say? That’s not what the 10th Circuit Court says. And depending on how the Supreme Court rules, it might not be so crazy. By next June there might be a new old Territory and fifty percent less of the State of Oklahoma.
It’s Constitution Thursday on The Dave Bowman Show…