“The Constitution,” Alan Dershowitz claims, “allocates to the president sole authority over foreign policy (short of declaring war or signing a treaty).”

Dershowitz makes that claim by way of defending US president Donald Trump against conviction in the Senate on two articles of impeachment.

More specifically, he disputes the Government Accountability Office’s claim that Trump violated the law when he used pending foreign aid to extort Ukraine’s president into investigating a political opponent.

According to GAO, the Impoundment Control Act “does not permit the president to substitute his own policy priorities for those congress has enacted into law.”

According to Dershowitz, the Act “does not permit Congress to substitute its foreign policy preferences for those of the president.”

Where in the Constitution do we find the “allocation” Dershowitz refers to? He doesn’t say, for good reason: The actual Constitution, unlike the one in Dershowitz’s imagination, agrees with GAO.

The Constitution empowers Congress, not the president, to “regulate commerce with foreign Nations.”

The Constitution empowers Congress, not the president, to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

The Constitution empowers Congress, not the president, to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

The Constitution empowers Congress, not the president, to  “provide for calling forth the Militia to … repel Invasions.”

The Constitution empowers the president to negotiate treaties — but those treaties require Senate ratification.

The Constitution empowers the president to appoint ambassadors and a Secretary of State — if the Senate approves of his choices.

The Constitution makes the president commander in chief of the armed forces, but only when they’re “called into the actual service of the United States” by Congress.

And the Constitution allows the president to spend money only “in Consequence of Appropriations made by Law.” That is, appropriations made by Congress, which the president may sign or may veto but may not “substitute his own policy priorities” for.

In Federalist 69, Alexander Hamilton — arguing for the Constitution’s adoption — cites most of the items above the president from a British-style monarch:

“The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments.”

Dershowitz’s “legal argument” (he’s formally joined Trump’s defense team) is that the Constitution means the opposite of what it says and what its framers said they meant, and that Trump is king, not president, of the United States.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz West’s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building.  “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”

The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty, unless those actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The loophole is the phrase “clearly established.”

The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”

How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the US Supreme Court to take up West’s case.

It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.

42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a “reasonable person” would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.

“Qualified immunity” is the opposite of “equality under the law.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

On January 14, Elizabeth Warren released a “Plan to Cancel Student Debt on Day One of My Presidency.”  Warren would use the US Department of Education’s “broad legal authority” to cancel up to $50,000 of debt on behalf of up to 42 million borrowers.

Warren’s plan makes a lot of sense  politically.  She’s struggling for traction in the Democratic Party’s presidential nomination race. Big promises to  millions of borrowers and their families could make a big difference in the Iowa caucuses and New Hampshire primary.

As for the larger problem of college costs, Warren’s overall approach is a mix of some bad things ($150 billion in taxpayer money for Pell Grants and “minority serving institutions,” plus the costs of “universal tuition free public college”) and one and a half good things above and beyond her debt forgiveness plan.

The one good thing: She proposes to eliminate the “undue hardship” standard for discharging student debt in bankruptcy.

The half a good thing: She wants to ban federal funding for for-profit colleges.

That second thing would be a full good thing, instead of just half a good thing, if Warren removed the word “for-profit.”

There’s a strong historical correlation between easy availability of student loans and soaring costs of a college or university education.  It’s basic economics. By artificially lowering loan risk to direct money at a good or service, government increases debt and drives up the price of that good or service.

Under the present system, naive 18-year-olds are swindled into borrowing  more and more insane amounts of money to spend on less and less valuable college degrees. Then when they find themselves barely scraping by under the burden of repaying those loans, they can’t resort to bankruptcy.

Think about that for a minute.

I’m 53. If I go out tomorrow and take out a sub-prime mortgage on a home and a loan for a $40,000 car, then max out a bunch of credit cards, I can substantially get out from under that debt in bankruptcy court.

The 18-year-old who trusted others when they said “you need to go to college and here’s how” doesn’t have the same recourse as spendthrift Tom, who was old enough to know better and then some, but partied hearty anyway. That’s not right.

No, everyone does not need to “go to college.” That’s becoming more true than ever as inexpensive distance learning options and non-school certifications in various fields prepare Americans for many jobs better than seeking a degree does. We need to stop lying to America’s kids about both the costs and the benefits of a college education.

I’m all for Warren’s idea of “forgiving” a bunch of the existing debt. But any kind of lasting solution calls for less, not more, government involvement in general.

The Libertarian Party’s platform offers a better direction: “We support ending federal student loan guarantees and special treatment of student loan debt in bankruptcy proceedings. … Education is best provided by the free market, achieving greater quality, accountability, and efficiency with more diversity of choice.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY