Hugh Hewitt Shares ‘Long Post’ Regarding ‘Decision to Order Strikes on Drug Boats’ – Twitchy

Warning: Long post ahead.

Many “Con Law experts”on X have many opinions on President Trump’s decision to order strikes on drug boats. They worry he may escalate to “kinetic actions” against Maduro, cartels and other narco-states. They seek to persuade that President Trump is violating “international law,” but they do not evidence even a basic understanding of Article II’s grant of authorities to the president —all presidents, the ones they love and applaud, and those they hate and boo.

The Constitution doesn’t change as presidents leave and arrive. President Trump’s authority is the same as President Washington’s, Lincoln’s, FDR’s, Ike’s etc as well as the failed presidencies. Their powers are the same.

Some of the Con Law experts invoke Justice Jackson’s key opinion in the Steel Seizure cases. Good. It is the equal of any of the relevant opinions, but all SCOTUS opinions in the area  matter when it comes to every exercise of unilateral presidential action abroad. If an “X expert” hasn’t even referred to those key opinions, perhaps mute the account.

Very few “X experts” seem to know of the decision in United States v. Curtiss-Wright Export Corp. (1936), in which SCOTUS held that [a] political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense.”

Curtiss-Wright is often the first case provided a law student in Con Law casebooks when Article II appears, and its discussion of presidential powers is still excellent commentary. (Short summary: The president’s power over foreign affairs is vast.)

Dames & Moore v. Regan (1981) concerned an enormous exercise of presidential power used to free our hostages in Iran. I emphasize enormous because the Court set aside the property and due process rights of many citizens, denying them the benefits of our court system and our Constitution’s guarantees and dispatching them and their claims to The Hague. (It denied it was doing so, but it did.)

Dames & Moore, written by Justice Rehnquist (not yet the Chief) begins: “The questions presented by this case touch fundamentally upon the manner in which our Republic is to be governed.”

That’s quite the bright red arrow pointing to the opinion as fundamental to our understanding of the scope of presidential power when he acts in foreign affairs.

Justice Rehnquist early on explicitly states that the decision is to be considered narrow (though it isn’t):

“We attempt to lay down no general ‘guidelines’ covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.” (Modesty that is becoming, but also misleading.)

Justice Rehnquist cites both Curtiss-Wright and Justice Jackson’s opinion in the Steel Seizure cases and notes: “As we now turn to the factual and legal issues in this case, we freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal, and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.

”That “never-ending tension” does not yet exist in President Trump’s directives to use military force against narco-states and the cartels that operate with their support or at least acquiescence.

If and when Congress directs the president to stop, then the issue would be joined. Until then the key is 89 years ago SCOTUS summarized the power of the president when it declared “political society cannot endure without a supreme will somewhere,” and added, “[s]overeignty is never held in suspense.”

The reality of all these cases (and the pending decision in the tariffs case) is that every POTUS has vast powers in foreign affairs, and courts (and especially pundits) do not. The criminal nations poisoning our people should know that and not rely on the “X experts” arguing otherwise.