Tom Fudge: President Bush will speak to Congress in his State of the Union address on Tuesday. Congress and the president have developed very different policy positions with regard to the Iraq war. But it appears as though Bush’s proposed troop increase in Iraq will go forward. And many of us are left wondering why Congress doesn’t try to stop the president from moving ahead.
The powers of the president and Congress to declare war and to direct military operations are, in fact, a matter of constitutional law. KPBS legal analyst Dan Eaton joins us to talk about what the president can and cannot do, without the approval of Congress.
The Senate Foreign Relations Committee will debate a Democratic resolution on Iraq on Wednesday.
Guest
- Dan Eaton, These Days legal analyst.
The following background research represents the views of Dan Eaton alone and does not represent the views of KPBS
TOPIC ONE: TROOP SURGE AND THE LAW
The President has announced plans to send a surge of an additional 21,500 troops to Iraq. Some members of Congress in both parties have indicated that they disagree. What is the law? Who has the power?
Congressional Power Under the U.S. Constitution
Congress has the power to cut off funding for the war effort, or any aspect of the war effort, through its so-called Constitutional “power of the purse.” That power is found in Article I, section 8 of the Constitution and says, in pertinent part: “The Congress shall have Power to lay and collect Taxes . . . to . . . provide for the common Defence [sic] and general welfare of the United States. . . .” That same provision of the Constitution gives the Congress the power to declare war and to raise and support the military. Most members of Congress have said they will not exercise that power to cut off funding for troops already committed in Iraq – even while promising, as House Speaker Nancy Pelosi put it on January 7, 2007 on the CBS Television program Face the Nation , to subject the President’s war plans to “the harshest scrutiny.” Some Democrats, such as California’s Maxine Waters, have said they are indeed ready to cut off funding.
The President’s Powers Under the 2002 Congressional Use of Force Resolution and the Constitution
In the “Authorization for Use of Military Force Against Iraq Resolution of 2002,” the United States Congress authorized the President “to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to – (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” This broad grant of authority conferred in subsection 1 permits the President to prosecute the ongoing conflict in Iraq by increasing – or decreasing, for that matter – troop levels “as he determines to be necessary and appropriate” absent Congressional exercise of its power to restrict funding of the operation. And the presidential veto is a check even against Congress’s power to control funding of the war.
While Congress authorized the President to use force, it never formally declared war on Iraq. That is not a legally significant distinction. Under section 2 (c) of the War Powers Act of 1973, the President has the right to use armed forces in three instances: (1) under a declaration of war; (2) a Congressionally approved authorization, such as the 2002 resolution, or (3) to confront a national emergency created by an attack on the United States, its territories, or armed forces.
President Bush contends that his constitutional power as Commander-in-Chief gives him the power to direct troops as he sees fit separate and apart from what Congress says. Article II, section 2 makes the President the Commander in Chief of the Armed Forces. Senate Foreign Relations Chairman Joe Biden of Delaware said on the NBC Television Program Meet the Press on January 7, 2007 that the President’s power as Commander in Chief gives him the right to set troop levels as he sees fit. Neil Kinkopf, a former lawyer in the Clinton Justice Department who is now an associate law professor at Georgia State University, has written in an article for the liberal American Constitution Society that Congress may restrict how the President prosecutes the war. “As Commander in Chief, the President’s role is to prosecute the war that Congress has authorized. The President may not go beyond this authorization.” In other words, Kinkopf concedes that Congress’s 2002 authorization “was drafted broadly enough to encompass the escalation that the President has in contemplation.” But Kinkopf also believes that, even beyond the power Congress has to control funding of the ongoing prosecution of the war, Congress may now limit that earlier authorization. He also argues that the President should seek Congressional approval of his announced plans, even if he is not legally required to do so. Mr. Kinkopf’s article, a follow-on blog in which he exchanges views with readers, as well as other materials from the Society on the issue are available at www.acslaw.org.)
Senator Biden introduced a resolution with Nebraska Republican Chuck Hagel, Senate Armed Services Chairman Carl Levin (D-MI), and Olympia Snowe (R-ME) a resolution to express the sense of Congress that the U.S. should transfer responsibility to the Iraqis “under an appropriately expedited timeline” without calling for an outright withdrawal or funding limit. If that resolution or a similar one introduced by another bipartisan group headed by Republican Senator John Warner of Virginia, a past Chairman of the Armed Services Committee, passed both houses of Congress, it may have a political effect, but it would have no legal effect.
What both of the pending resolutions say to the President is this is what Congress feels about the ongoing war effort in Iraq. The Biden-Hagel resolution says that “an open-ended commitment of United States forces in Iraq is unsustainable and a deterrent” to the Iraqis gaining control of the security of their own country. It also says that “it is not in the national interest of the United States to deepen its military involvement in Iraq, particularly by escalating the United States military presence in Iraq.” Does it say that the Congress disagrees with the President’s announced troop surge? Yes. Does it legally require the President to drop those plans? No.
Congress Has Blocked Funding of Overseas Conflict in the Past
Congress passed a law in 1973 to halt funding of bombing in Cambodia by August 15, 1973. The majority that passed the bill was not veto-proof, but Nixon did not challenge the bill and bombing in Cambodia stopped by August 14, 1973. Moreover, in December of 1974, the Democratic controlled Congress passed the Foreign Assistance Act of 1974 which cut off all U.S. funding to the South Vietnamese government. President Ford vetoed the bill, but Congress overrode the veto.
Use of the Courts to Block War Effort?
On August 4, 1973, NY Congresswoman Elizabeth Holtzman asked U.S. Supreme Court Justice William Douglas to halt the bombing of Cambodia as unconstitutional because Congress had never declared war on the country. Justice Douglas granted the Congresswoman’s request for a temporary halt, writing: “[E]ven if the “war” in Vietnam were assumed to be a constitutional one, the Cambodian bombing is quite a different affair. Certainly Congress did not in terms declare war against Cambodia and there is no one so reckless to say that the Cambodian forces are an imminent and perilous threat to our shores.” ( Holtzman v. Schlesinger (1973) 414 U.S. 1316, 1320.) Comparing the Congresswoman’s application for a stay to a similar request that would be filed to block an execution, Justice Douglas issued, in effect, a stay of the bombing. Justice Thurgood Marshall, after conferring by phone with the other seven Justices, reversed Justice Douglas’s stay a mere 6 hours after it was entered. ( Schlesinger v. Holtzman (1973) 414 U.S. 1321, per Marshall, J.)
The court is not a viable option to challenge the announced troop surge. There is no time given the imminence of the troop surge. It is highly unlikely, though not out of the question, that the two branches of government may yet square off in court depending on how long the war effort lasts and how much support the American people continue to give it.
TOPIC TWO: RADIO CONTEST WATER DEATH
Jennifer Lea Strange, a 28 year-old mother of three, participated in a water drinking contest on radio station KDND in the Sacramento area on January 12. She was one of 18 contestants competing for a Nintendo Wii that she intended to give to her kids if she won. The contest required the contestants to drink as much water as possible without going to the bathroom. She complained on the air hours into the contest that her head hurt. She eventually conceded the contest, settling for tickets to a Justin Timberlake concert. Several hours later, Mrs. Strange was found dead in her home with the coroner making a preliminary finding that she died of hyponatremia, water intoxication.
The Sacramento County Sheriff is investigating the episode for potential criminal charges. Mrs. Strange’s family has filed a lawsuit against the station and others for causing her death. The radio station, DJ’s and perhaps others connected with the program, could be liable for conducting the radio station context. Indeed, according to news reports, the attorney representing the Strange family has threatened to add Nintendo to the suit if that company is found to have participated in the contest. Mrs. Strange’s family is contending that the radio station is liable for Ms. Strange’s death because the DJ’s failed to investigate the dangers from the contest and misrepresented the risks to Mrs. Strange.
Why is the Radio Station Potentially Liable?
Mrs. Strange’s attorney is contending that the contest was conducted by station employees, namely the DJ’s and others, arguably in the course of doing their job presenting a morning show that featured outrageous stunts. Under a doctrine known as respondeat superior , the law makes the employer legally responsible where its employees put others in unreasonable risk of danger in the course of performing their job duties. There is an argument that the DJ’s job duties only extended to presenting amusing stunts, not life-threatening ones. The question of whether what the DJ’s did was negligent depends on whether the injury from encouraging Ms. Strange to drink all that water was foreseeable.
There is reason to believe that the DJs knew that Ms. Strange was in danger. In fact, the hosts during the four hour broadcast could be heard discussing the death in 2005 of a Chico State student who died after drinking too much water in a fraternity hazing incident. The DJ’s even took a call on the air from a nurse who warned them about the danger of the contest. They joked that they had obtained releases from the contestants so that the station, at least, could not be held responsible.
Did Mrs. Strange Waive Any Liability by the Station for Injuries from the Contest?
Perhaps not. It is common for sponsors of contests to require participants to sign a waiver of any liability for injuries resulting from the contest. Such waivers typically have words to the effect that the participant acknowledges that the participating in the contest carries risk and they agree to release the sponsor and every individual associated with the sponsor for liability for any injury to the participant, including injury from sponsor negligence. Under California law, such waivers probably prevent a lawsuit for the sponsor’s ordinary negligence. Under California Civil Code section 1688, such waivers are invalid, however, to excuse fraud, including negligent misrepresentation, as well as intentional injury or the negligent or willful violation of a written law.
It is believed that the station did not have the participants sign that kind of release of liability. Even if it had, Mrs. Strange’s family might be expected to argue that the DJ’s told her drinking so much water would not hurt her even if they believed it could or had no reasonable basis for believing what they told her. The release the contestants did sign related to a publicity release allowing the station to broadcast the contestant’s voices and images without paying them. That won’t help the station here.
Did the Radio Station Have the Right to Fire the Employees Involved?
It is unclear. According to reports, ten radio station employees lost their jobs over this. Whether the station had the right to fire those people depends on their contracts. The DJ’s and perhaps others may have had contracts requiring the station to have good cause before firing them. Going through with a contest that resulted in a tragic death may well constitute good cause, but we don’t know enough to be sure. The station probably had the right to terminate the employment of at least some of the other employees involved, such as the interns, even without good cause. It would not be surprising, though, if the employees who lost their jobs did not challenge the action, especially those like the DJ’s, whose future livelihood depends in large measure on public approval.
Isn’t Mrs. Strange Partially Legally Responsible for Drinking All that Water?
A jury could find that Ms. Strange is responsible for some of the liability for not taking reasonable precautions for her own safety by drinking all of that water, especially continuing to drink it after she admitted on the air that she was starting to feel sick. Many observers believe that this case will never actually be resolved by a jury but, instead, is likely to settle out of court for a cash payment to the Strange family.
The California Supreme Court Addressed a Similar Issue in the 70’s
In 1975, the Supreme Court of California ruled that a Los Angeles area radio station could be liable for a death caused when the station conducted a contest in which its largely teen audience was promised a $25 cash reward for the first person to spot a DJ riding around various parts of LA. One young man spotted the DJ’s signature red car and, in attempting to follow the car, forced another car onto the center divider of a freeway where it overturned, killing the driver. The deceased driver’s wife and children sued the station and the drivers allegedly involved.
The California Supreme Court upheld a $300,000 jury verdict against the station and one of the teen drivers. The Court wrote: “We need not belabor the grave danger inherent in the contest broadcast by [the radio station]. The risk of a high speed automobile chase is the risk of death or serious injury. Obviously, neither the entertainment afforded by the contest nor its commercial rewards [to the station in the form of higher advertising revenue] can justify the creation of such a grave risk.” ( Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 48.)
TOPIC THREE: THE LATEST ON MT. SOLEDAD
On October 19 last year, the United States Court of Appeals for the Ninth Circuit heard more than an hour of argument about whether Judge Thompson’s order imposing $5,000 per day fines could stand in light of the law President Bush signed on August 14, 2006 transferring the land and the cross to the federal government. On January 12, 2007, the Court ruled that the whole dispute was now just academic, or “moot,” because of the new federal law and threw out San Diego U.S. District Court Judge Gordon Thompson’s May, 2006 order. (A copy of the Court’s order is available at www.ca9.uscourts.gov under the Documents section and the Opinions sub-section.)
This does not mean that the legal fight over the cross is over. First, the Ninth Circuit sent the case back to Judge Thompson to consider whether, even though the May order was no longer enforceable because of the new law, Mr. Paulson’s attorney should still recover attorney’s fees from the City from his success until the law was changed and, if so, how much. Second, remember there is a case pending before San Diego federal Judge Barry Ted Moskowitz and McElroy suggested at the October oral argument that a decision in that case may come as soon as early this year. With Mr. Paulson’s death, Steve Trunk has taken his place as the party challenging the cross.
