I find it curious that virtually everyone can read “land or naval forces” as used in the Fifth Amendment to include the Air Force, but some people balk at reading the Interstate Commerce Clause to include regulation of activity that, in the aggregate, substantially affects interstate commerce. I find both jumps relatively easy as an interpretive matter, but the Commerce Clause jump far easier given the constitutional text.

Magoo, the situations are different. The people who think the Interstate Commerce Clause is being overstretched are not complaining that some new kind of national business activity that does not involve goods on barges is being regulated. If it is the case, for example, that essentially all futures contracts are sold back to the producer before delivery so only electronic impulses cross state lines, most such people would not therefore conclude that the futures markets cannot constitutionally be regulated.

What they complain about is the extension of this clause to cover intrinsically noncommercial activity because if you squint hard enough they might affect someone's purchases.

Of course those who think that the second amendment only applies to muskets, or that the first amendment does not apply to internet communications, presumably don't believe section 1.8 justifies the government maintaining an air force.

-dk

Maybe this is why they used Naval ranks on Star Trek! When Congress helped establish the Starfleet Command it was ruled unconstitutional, so they just made it a division of the Navy. Of course, whether it's the Starfleet or the Air Force, couldn't Congress just fund both under the Spending Clause?

There's a lot to say in response, but I'll limit it to this. 1) I doubt very much that "regulate" ever has been understood to means only prohibit. 2) Call up the Air Force and ask to speak to someone in the army, or the office of "land forces," or the person in charge of our "land-based fighting forces." They'll say you have the wrong number. 3) The textual issue is more interesting under the 5th Amendment than under Article I; that's why my post focused on it. You don't get the interpretive boost from "raise and support".

Is there not something in there about an enumerated responsibility of the federal govt, is to provide for our common defense? If we can 'create' a federal cabinet for education, than surly we can create an airforce to expand our means to secure our common defense

I don't understand why anyone cares about the Air Force point. The strictest of strict constructionists almost always concede the "technology" hypos when pressed. 1787 was long before the Wright Brothers, and land and sea was a comprehensive listing of where the military could go. No reasonable person would argue that the Framers meant affirmatively to prohibit military in aircraft.

Agreeing that the air force is constitutional doesn't mean that suddenly everyone's a living constitution subscriber.

If everyone agrees so readily on the technology issues, why have courts so obviously determined that broadcast media (radio, television, both considered as broadcasted rather than wired) are subject to far stricter regulation than the constitution would ever allow to press and speech?

The third is wimpish because it would expand the spending clause to infinity by simply putting whatever expenditure you do not like under the technicality of the Army (or, for instance, call the gun free school zones act an "income tax" and be done with it).

No one has discussed Question 9.
If the answer is "no," then how can [could?] it be possible to serve on the Supreme Court and in the Cabinet simultaneously?

The answer to 9 is no. Article I, § 6, cl.2 : "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

There is no Constitutional limitation on serving on the Court and in the cabinet that I recall offhand, but I'd be willing to bet there is a statutory one.

Every one of those items you're all talking about is intitally constructed or takes off from the ground, so you're not getting around my characterization. My point was that the definitions subsumed all forms of military organization to that point, so there is no reason to believe otherwise. The broadest definition of "army" would include everyone but the navy (yes even the Marines who, though not the Army are certainly an army, despite their chosen mode of transportation).


KDP

1. It doesn't. Congress can make such rules regarding bankruptcy as it sees fit. Art 1; § 8, cl. 4.

2. Your personal hobbyhorses aren't necessarily unconstitutional. Disability discrimination is statutory, not constitutinal, and so is not a proper subject for state bar exams testing on constitutional law.

3. This is nonsensical. Anyone can file a cert petition, disabled or otherwise. Again, your hobbyhorses aren't legal issues just because they're your hobbyhorses.

Cecilius wrote:

Maybe this is why they used Naval ranks on Star Trek! When Congress helped establish the Starfleet Command it was ruled unconstitutional, so they just made it a division of the Navy.

I take it you never watched Star Trek Enterprise (the prequel series that just ended last season), which depicts Starfleet in its formative years (about 150 years from now). Short version: It wasn't the U.S. Congress that established Starfleet, it was the "united Earth" government of that time period. Eventually it would be subsumed into the Federation when it was founded. It's unclear whether the United States, or any other present-day nation-state, even still exists as such in the Trek universe at the time Starfleet was/will be founded.

It says Congress has the power to raise armies. That seems to me to mean that they can build an army on the ground, and then raise it into the air. ;)

PerSon, unless your argument is that they can raise money to provide for the common defense but can't provide for the common defense, yours is a distinction without a difference. Making the common defense an indirect object of collecting taxes makes it a power enumerated in the Constitution. To argue that you can collect taxes for X but that you can't do X is seemingly nonsensical.

COURTS typically do not cite unpublished law, though attorneys sometimes do, but they must provide a copy to the court and the opposing party AND the unpublished opinions are not binding on any court, but they are persuasive in that they give the lower court judge an idea of how the higher court might rule on the issue if the unpublished opinion is recent enough.

Number 3 seems tough to me. As to criminal laws, a defendant must know what is prohibited before he can be convicted and a law that no one knows exists certainly doesn't provide any sort of notice. Congress may not secretly pass laws because the Constitution requires that votes be recorded in the Journal of the body voting. Any law that was secret would definitely result in a violation of due process were the law ever enforced against someone to take life, liberty, or property (i.e. civil penalties) in the non-criminal context. Appropriations must be made public as a matter of Constitutional law. See Art I. § 9.

Of course you can interpret the Constitution to authorize an Air Force, if you want to. You can interpret it to allow anything that you want. And, interestingly enough, you interpret it to disallow those things you don't want. People on this blog prove that all the time.

J.J.:

I disagree. That is the Tax and Spending Clause. The clause which discusses the army and navy is the money clause. Btw, I believe the Air Force is constitutional, but do not see common defense as an enumerated power.

I can get slammed for saying this, but common defense is inherent in the nature of the sovereign - but that is too close to an unenumerated power.

18. Could Congress validly give the Chief Justice the power to appoint the Attorney General?

This is an interesting question. Art. II, Sect. 2, clause 2 of the Constitution states:

"He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The language of this Advice and Consent clause would appear to indicate that it would not be constitutional for Congress to pass a law giving the power to appoint the Attorney General to the Chief Justice of the United States. The phrasing of the clause implies that "other public Ministers and Consuls" are to be distinguished from "all other Officers of the United States"; the Attorney General would likely be considered a "public Minister," while the "inferior Officers" would be equivalent to "all other Officers of the United States." More importantly and compellingly, the Attorney General, as head of the Justice Department and member of the Cabinet, would be one of "the Heads of Departments" to which Congress could grant the power of "Appointment of such inferior Officers." That would imply that the Attorney General would not be one of the "inferior Officers" covered under the last part of II.2.2, thus indicating that Congress would not be able to constitutionally give the Chief Justice the power to appoint the Attorney General. (II.2.2 does appear to indicate, however, that Congress could pass a law granting the Chief Justice the power to appoint lower level Cabinet officials, such as the Solicitor General, or for that matter assistant secretaries in any Cabinet department.)

Assume the Department of Education is unconstitutional (not within the Commerce Clause and not within any other enumerated federal power).

Could Congress make the Dept. of Education constitutional by turning its employees into Army officers and enlisted personnel and calling it the Army Corp of Educational Engineers?

I agree with those who say that the Air Force is constitutional because it's an army, albeit one that flies through the air, and Congress has the power to "raise and support armies."

However, I disagree with those who say that the Framers couldn't have conceived of an air force. The Montgolfier brothers had invented the manned hot air balloon in 1783, not long before the Constitution was written. If the First Congress had wanted to establish an army that traveled by balloon instead of on land, that might have been considered impractical at the time but it probably wouldn't have been considered unconstitutional.

Why is the Army Corps of Engineers not a violation of Posse Commitatus?

As to Question 9-
a similar issue is before the Court of Appeals for the Armed Forces, an Article I court that sits atop the military courts-martial system. And it's an Air Force case! (How's that for continuity??) See post #1 and post #2 from JAG Central

Tim Hamilton,

an air force can't occupy ground like an army, either.

Re: Army Corps of Engineer

It bothers me that the military has authority over the civilian.

This sort of thing is one of the reasons that Froomkin remains one of the most amazing people I have ever met intellectually. Simple questions. Very difficult answers.

Looking at Michael Froomkin's blog, I do see that he has an answer for the Air Force question. Apparently, in Laird v. Tatum 408 U.S. 1 (1972), The Air Force is "comprehended in the constitutional term 'armies.'"

TJ &Bruce Hayden--
Good points on ground occupation. In comparing the Air Force to the Navy in terms of not being able to occupy ground (let's ignore the Marines, briefly), I agree. The Air Force is analogous to the Navy that way, and so is not the potential threat to liberty that an army could be. Of course, it can attack ground targets inland, where the Navy cannot, but it still can't hold ground. If we were to pass an Air Force amendment today, it should be written as the Navy clause is (no time restrictions on funding).
Now, as to the Marines. Yes, that causes a problem with my premise that the Navy can't hold territory. And we've had Marines from the beginning--I think even before the Declaration of Independence, right? Now, they've always been small in number, compared to the Army. How far inland are they ever sent, I wonder? They were employed in the Pacific Theater of WWII because these were islands--the Marines are part of the Navy, and you need Navy ships &planes to get them from one place to another. So they were better suited to the ground fighting in the Pacific than the Army was.
What about in Iraq? How far in did the Marines go?
Anyway, the Marines could, in principle, be a threat to domestic liberty in the way an army can. So limiting only the Army to a 2-year time-limit isn't a perfect prophylactic.
On a related note--I wonder if one additional reason for not restricting the Navy the way the Army is, is that the Navy's ships can't take being ignored, untended, for indefinite amounts of time, in-between periods of war. A citizen-army of the old kind was often raised for a particular fight, then disbanded afterwards. Arms could be stored in armories without needing constant maintenance. Just a guard. But an old wooden ship couldn't sit out in the harbor for years between wars without being maintained, and be expected to function well when a new navy was "raised." You had to (and still have to) keep them (ahem) "ship-shape."
As a former NASA scientist, I also have a fondness for one other unconstitutional branch of the Federal Government. We ought to Constitutionalize NASA, as well, or resubordinate it to the military, where it had been. I like a civilian space agency, though.

To be perfectly honest, the invention of a separate "air force" has - IMHO - reduced the effectiveness of the force.

Let's roll it back into the Army until they can figure out that the A-10 is a fanatasic ground support aircraft and they *will* learn to love it.