KagroX finds a military law review article that states in no uncertain terms that the Congress is exclusive holder of the funding power. The article comprehensively reviews the history of Anglo-American law on the subject, including discusions of the British Parliament and the Monarchy, the Federalist Papers, the Constitution, Supreme Court decisions and custom. Not surprisingly, Kagro tries to shoot holes in the comprehensive argument, relying on the examples cited by the law review author of extraconstitutional emergency expenditures by Washington during the Whisky Rebellion and Lincoln during the Civil War. But the conclusion of the author is without ambiguity:

When, in some cases of urgent necessity, they ventured to act without law or against law, they boldly took a responsibility; they ran the risk of the law, sometimes the risk of their fortune in damages; then they hastened to acknowledge on the records of the legislature that they had done a thing, meritorious indeed, but illegal; and asked the legislature to cover them with an indemnity.

Washington and Lincoln were not availed of the opportunity to seek the funding PRIOR to acting. That was their principal argument for why they did what they did and the Congress subsequently ratified their actions. Here, not funding the Iraq Debacle will follow years of public debate and would be an express rejection of the President's requests. The situations are not comparable. More.

Via recontext, this SFChronicle article has Speaker Pelosi's thoughts on contempt of Congress, impeachment and ending the Iraq Debacle:

Congress this week will take the next step to force the Bush administration to hand over information about the dismissal of U.S. attorneys and the politicization of the Justice Department, House Speaker Nancy Pelosi said Saturday. . . . Pelosi spokesman, Brendan Daly, said . . . it would be former White House counsel Harriet Miers, who defied a House Judiciary Committee subpoena to appear. . . . Pelosi also reiterated Saturday that she would not engage in what would perhaps be the biggest confrontation possible with the White House -- seeking the impeachment of Bush over the Iraq war. . . . "Look, it's hard enough for us to end the war. I don't know how we would be successful in impeaching the president," Pelosi said.

Expect the howls to be deafening from impeachik quarters. I'll be howling too if Pelosi does not acknowledge the Congressional power of the purse to end the war and the power of the Congress to use inherent contempt to enforce its subpoenas.

(Written Sunday night.) What a lousy day. Last night, out of nowhere, my Powerbook G4 just went and died. No matter how many times I tried to boot it up, I never got past the gray screen with the Apple logo. I spent most of the night on Apple's website, doing all the things they said, pressing control-option this and command-option that, resetting things called PRAM and PNU, all to no avail.

Today I called the local Apple Store that has a "Genius Bar" and got a 3:45 pm appointment. It was 100 degrees outside, but off to the mall I went. The geniuses hooked it up to their equipment and confirmed the hard drive failed and the data can't be read.

For $150, they would remove the hard drive so I could take it to a data recovery specialist who would charge hundreds more to try and recover stuff. For $400, I could get a new hard drive put in, but my data would be lost.

To make things worse, it turns out that even if I buy a MacBook or MacBook Pro as a replacement, I won't be able to transfer my music and video(other than that purchased from the iTunes store) to the new computer. Apple licensing prohibits it. iTunes only allows the downloading of music from iTunes on your computer to iPod, not from iPod to iTunes.

This totally sucks.

More...

Adam Cohen of the NYTimes Ed Board reminds us what the Founders intended:

The founders would have been astonished by President Bush's assertion that Congress should simply write him blank checks for war. They gave Congress the power of the purse so it would have leverage to force the president to execute their laws properly. Madison described Congress's control over spending as "the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure." . . .

But Cohen warns:

The Constitution cannot enforce itself. It is, as the constitutional scholar Edwin Corwin famously observed, an "invitation to struggle" among the branches, but the founders wisely bequeathed to Congress some powerful tools for engaging in the struggle. . . . Members of Congress should not be intimidated into thinking that they are overstepping their constitutional bounds. If the founders were looking on now, it is not Harry Reid and Nancy Pelosi who would strike them as out of line, but George W. Bush, who would seem less like a president than a king.

Hear, hear!

This history deeply influenced the framing of our Constitution:

Charles [I of England] had inherited disagreements with Parliament from his father, but his own actions (particularly engaging in ill-fated wars with France and Spain at the same time) eventually brought about a crisis in 1628-29.

. . . Tensions between the King and Parliament centred around finances, made worse by the costs of war abroad, and by religious suspicions at home. . . . In the first four years of his rule, Charles was faced with the alternative of either obtaining parliamentary funding and having his policies questioned by argumentative Parliaments who linked the issue of supply to remedying their grievances, or conducting a war without subsidies from Parliament.

. . . Charles had to recall Parliament. However, the Short Parliament of April 1640 queried Charles's request for funds for war against the Scots and was dissolved within weeks. . . .

Posts 1 and 2 here.

Eugene Volokh provides more justification for the use of inherent contempt by the Congress to enforce its subpoenas:

[F]irmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. . . . Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. . . . As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts . . ."

. . . [H]ere Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. . . . [I]t seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

It seems difficult to see how unitary executive proponents can argue with the power of Congress to commence inherent contempt proceedings while at the same time denying the rights of the courts to review claims of executive privilege. Indeed, Volokh obviously can not. Yet another reason to favor inherent contempt proceedings in the face of the Bush Administration's outlandish assertions.

No spoilers here...

On CNN's Reliable Sources this morning, Howard Kurtz and his guests discussed how newspapers and internet sites broke the embargo over the release of the new Harry Potter book. His guests were outraged, calling the leaks "immoral" and "unethical."

Since I don't care about Harry Potter, I have been trying to put this in context of something I do care about, to see if I would have the same reaction as Howard's guests.

What if newspapers and internet sites had leaked the ending to the Sopranos?

I would have been livid at being told the Sopranos' ending before it aired, especially if I hadn't gone looking for it -- for example, if I happened to click on a leaking article or website which didn't put at the top in bold, big letters, "spoiler alert...ending revealed" or something to that effect.

But, what if the sites all contained the spoiler alert? Is it still ethical or immoral to write about the ending?

And who has the ethical and moral right to demand the ending be shielded, the author/series creator or the readers/viewers?

Good questions. Who's got answers?

Crooks and Liars is hosting a live-chat with Michael Moore today between 4:00 and 5:00 ET.

The movie has opened in about 500 new cities across the country this weekend and is the # 5 grossing documentary of all time so far……

Michael Moore's SiCKO site is here.

Frank Rich in today's New York Times (reprinted and publicly available here):

Forty years late, the party establishment is finally having its own middle-aged version of the summer of love, and it’s a trip. The co-chairman of John McCain’s campaign in Florida has been charged with trying to solicit gay sex from a plainclothes police officer. Over at YouTube, viewers are flocking to a popular new mock-music video in which “Obama Girl” taunts her rival: “Giuliani Girl, you stop your fussin’/ At least Obama didn’t marry his cousin.”

As Margery Eagan, a columnist at The Boston Herald, has observed, even the front-runners’ wives are getting into the act, trying to one-up one another with displays of what she described as their “ample and aging” cleavage. The décolletage primary was kicked off early this year by the irrepressible Judith Giuliani, who posed for Harper’s Bazaar giving her husband a passionate kiss. “I’ve always liked strong, macho men,” she said. This was before we learned she had married two such men, not one, before catching the eye of America’s Mayor at Club Macanudo, an Upper East Side cigar while he was still married to someone else.

Putting it in context:

Via Think Progress, which has the video and transcript, the Weekly Standard's Bill Kristol said on Fox News Sunday this morning:

“Every Democratic presidential nominee is going to the DailyKos convention,” said Kristol. “That’s the left-wing blogger who was not respectable three or four years ago. The Howard Dean kind of sponsor. Now the whole party is going to pay court to him and to left wing blogs.”

First, the convention is put on by Yearly Kos, an organization separate from the Daily Kos blog and separate from Markos.

More importantly, Markos is and always has been respectable. I'll repeat what I wrote a few years ago:

Markos is a friend of our's. We've spent hours with him - and his wife. He even designed TalkLeft for us, gratis. We've watched him grow from trying to get a few hundred hits a day to getting a thousand hits by noon (another landmark) to where he is now: the largest and most widely read liberal political blogger in the blogosphere.

He's earned every visitor to Daily Kos with his hard work, intelligence and uncanny grasp of all things related to politics and the internet. He grew up in war-torn El Salvador and served as an enlisted U.S. soldier in Gulf War I. He has a law degree. He is an incredibly talented pianist. He and his wife just had this beautiful baby. He's our friend.

Respectable means "worthy of respect or esteem." I think it's Kristol who is lacking in this department, not Markos.

Most of the Democratic presidential candidates and as well as many top Congressional leaders are attending Yearly Kos and participating in forums where they will answer questions from the attendees, 1,500 people from all walks of life concerned about the state of our nation.

More..

There is a NYTimes article on Rudy and how he has exploited race for political purposes in his political rise. The mendacity, flip flops, race baiting and exacerbation are all revealed in detail. But I really like Greg Sargent's piece on Rudy. Here is a highlight:

Rudy ascended to the Mayoralty on a wave of anger and raw emotion in New York. His strategy was fairly straightforward: He spoke to the (not unjustified) fears and resentments that rising crime and demographic change were causing in blue-collar outer-borough Catholics, aging Jewish voters, and even some white liberals. . . .

For instance, as today's Times notes, during his 1989 campaign against Dinkins, his "campaign ran an ad in a Jewish newspaper with a photo of Mr. Dinkins and Mr. Jackson . . . The paper adds that Rudy also began calling Dinkins "a Jesse Jackson Democrat." [Earlier that year, he criticized Ed Koch for calling Dinkins a Jackson Democrat.]Speaking to the fear and bewilderment of outer-borough white voters anxious about the changing city around them, Rudy played a subtle -- and sometimes not so subtle -- racial game to take power. Eventually, it worked.

. . . You can't understand the "bulls#$t" moment without seeing it in this larger context. It was anything but some random outburst. It isn't just some little "gotcha." It's Rudy in the raw. It's the Whole Rudy -- his rage, his overwhelming drive, his successful exploitation of the city's racial tensions to take power, his nasty and vicious streak.

People do not realize what a dangerous and unhinged man Rudy Giuliani is. There could be no worse fate for the country than Rudy becoming President in 2009.

If Sen. Russ Feingold thinks this will placate impeachniks, I think he is in for a rude awakening:

As you know, over a year ago I introduced a resolution to censure the President for his illegal wiretapping program, and for the way he misled Congress and the public before and after the program’s disclosure about whether his administration was following the law. I appreciated the strong support I got from all of you for that effort. You really helped galvanize support for that push for accountability, and encouraged people all over the country to recognize how damaging the President's actions were to our basic freedoms. So, as I announced a little while ago on Meet the Press, I plan to introduce two censure resolutions in the Senate in the coming weeks. These will be broad resolutions, one of which will address the war in Iraq, including the administration's efforts to mislead the nation into, and during, the war, mismanagement of the war, and its attempts to justify this Iraq mistake by distorting the situation on the ground in Iraq. The other condemns the administration's abuse of the rule of law. Because, of all this administration's outrageous misconduct, those are truly the worst of the worst.

For the record, I supported censure of the President when Feingold first proposed it in January 2006.