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In addition to being feckless, all of this [action by Congress to stop or dissuade the President from sending troops to Iraq] is unconstitutional. As Commander-in-Chief, the President has the sole Constitutional authority to manage the war effort. Congress has two explicit war powers: It has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003. It also has the power to appropriate funds.
There is a long and unsettled debate over whether Congress can decide to defund specific military operations once it has created a standing Army. We lean toward those who believe it cannot, but the Founders surely didn't imagine that Congress could start dictating when and where the 101st Airborne could be deployed once a war is under way
Tell it to Vice-President Dick Cheney, who just told Wolf Blitzer that "Congress has control over the purse strings. They have the right, obviously, if they want, to cut off funding"!
I agree with Cheney. I remain convinced that, for good or ill, "the President goes to war with the army that Congress gives him ... [Democrats now have] the Constitutional power to force this conflict to a close. They may explicitly defund the operation, or may do so sub silentio by simply failing to appropriate the funds for its continuation. If they fail to do so, that is a concession that the reality is more complicated than they were ready to admit before campaigning on bringing the war to an end."
Article I makes plain that it is within the power of Congress "[t]o raise and support armies, but no appropriation of money to that use shall be for a longer term than two years." It also makes plain that Congress makes the laws, and "[n]o money shall be drawn from the treasury, but in consequence of appropriations made by law." It is now so well-established as to be beyond dispute that Congress does not simply pass a law saying "we appropriate $x billion dollars for military uses to be determined by the President and Secretary of Defense," and if Congress has authority to grant funds to specific military activities, it follows that it must have the authority to withhold funds from specific military activities. To be sure, this principle has limits -- I agree with the Journal that Congress cannot micromanage the war in Iraq without infringing on the powers of the Commander in Chief, but refusing to fund continued military operations in a given country is not "micromanaging" the conflict. Congress could not have prevented Lincoln from deciding to fight at Gettysburg, but it could have deprived him of the troops to fight anywhere, and the same principle applies here.
Federalist 24 seems apt:
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
One realizes that the WSJ's purpose is not to make excuses for Congressional Democrats, but Pelosi et al will be rubbing their hands with glee at this editorial. It provides them with the cover they need: having campaigned on ending the war, they can tell their base "oops, sorry, Congress can't do that. Blame the Constitution." That is not only false, but abject cowardice. Congressional leaders are not as stupid -- one hopes -- as they think their constituents are; they understand the real (and, for that matter, political) consequences of withdrawal; they understand, as Matt Yglesias has noted, that their goal is to force Bush into halting the war, but to do so in such a way that blame for the consequences will fall on him, not them. Yet, the fact remains that if Congress fails to stop the war, it will be because Democrats have chosen to continue the war, not because the institution lacks the power to do so.
One question I have had
One question I have had recently, in light of talks about Congressional power, can Congress rescind a Declaration of War(or a authorization to use force)? I assume the subject has been brought up in legal circles.
Maybe the purse string is the de facto method of rescinding such a declaration. It is going to be curious to see how the Democrats respond as the pressure from the wingers are going to ratchet up. Sense of the Congress resolutions are not going to cut it with them. There is going to be a lot of rancor when the next emergency spending authorization for Iraq comes up.
That's rather like asking if
That's rather like asking if you can put the toothpaste back in the tube, isn't it? I mean, a declaration of war is not the same thing as an ongoing license to the President to make war, it's a discrete event in time. It seems to me that once a state of war exists, the President has authority to use the troops that Congress provides him with in such manner as he sees fit. A President would not need a declaration of war, for example, to use military force to repel a Canadian invasion, nor to then invade Canada subsequent to such an attack; it's only necessary to get a declaration of war in order to start a war, not to fight one.
On the other hand, I suppose that this is what Bush gets for failing to seek an actual declaration of war. He got an "authorization to use force", which seems to amount to the same thing in practice, but isn't quite the same thing. It seems to speak in terms of ongoing authority, rather than a declaration of war.
At a very minimum, though, Congress has the power to force the President's authority to its perigee, which is to say, they can force him to act within category three of Justice Jackson's Youngstown framework. The resolution they currently have on the table doesn't do that - Congress has the power to take real and binding action within its expressly-delegated powers, so if it declines to exercise it, and instead takes only symbolic or hortatory action, that keeps Bush within category two.
There was an interesting post a few weeks ago here talking about these issues.
Simon, I don't see the contradiction
I don't see any contradiction between the WSJ piece and the Vice President's position. I guess you're reading "specific military operation" as meaning "Iraq", but I don't think they mean it that broadly, looking at the context. For instance, in an earlier paragraph, they say:
The resolutions of which the WSJ complains, are indeed directing at micromanaging the war. They do not simply call for an end to the war, they call for specific types of troop deployments. I agree with the WSJ (and the Administration) cannot de-fund the deployment of specific units in specific areas. They could pass a resolution prohibiting the expenditure of funds in Iraq generally, which would be tantamount to a repeal of the AUMF, or they could simply cut the budget for the standing army by the amount currently being spent in Iraq, but they can't say "we'll fund the deployment of the 2rd brigade of the 3rd Army, but only if it's deployed in an area within a 10 mile radius of Tikrit, Iraq".
Further, as a political strategy, I don't support making the argument in your last sentence. It holds up for STARTING the war; Congress voted for it, and they could have made the decision not to send troops to begin with. However, once the war starts, I don't support much Congressional meddling in the operations thereof, so I also don't hold them terribly responsible for not acting. It's one thing to vote against the war before it starts, before our troops are in harms way. Once committed to that decision, however, I think it incumbent upon the Congress to provide all necessary funding for the successful completion of operations, even if they no longer politically support the war. Trumpeting their acquiescence in continued funding as political support for the war undermines that principle and increases the political pressure on them to do something I consider unwise, de-funding the war effort. As long as they continue funding it, I'm perfectly happy for them to heap all blame for the consequences on the President.
To add
War Powers Act addresses only the initiation of hostilities, not the micromanagement of ongoing hostilities. And WPA itself is questionable--they've been dancing that separation-of-powers dance since it was first passed. An AUMF is only legitimate in the first place under the "power to declare war" clause--a formal "declaration of war" is a fairly pointless distinction. Ask Joe Biden about that.
Congress has no scalpels as relates to war powers, only blunt instruments, but they do have them. The ability to rescind or modify the AUMF. The general power of the purse as relates to the military. The power to impeach. But anything short of actually using those blunt instruments is weak-kneed jello-spined political posturing and grandstanding. And the first of those blunt instruments is pretty damn questionable as to applicable authority at directing the C-in-C in the specific exercise of his own constitutional powers and authorities.
the rock and the hard place
I don't buy the notion that congress ought to be constrained to the black and white choices of either acting decisively or doing nothing and keeping their mouths shut.
If you don't like either of the options that you have authority to employ, there's nothing wrong with trying to use persuasion and public opinion to broker something in between. It's a very weak force, and I agree there is an element of opportunistic grandstanding on the part of some or even many anti-war folks. But if you have a hammer, what's wrong with saying "please don't make me hit you with it?"
There must be some folks among those opposed to our current path whose oppisition comes from a genuine sense that we're making the wrong choice but who also appreciate the potential for calamity in the wake of precipitous change in course.
No driver likes a backseat driver. But suppose you're in the passenger seat and you have control over the emergency brake, and you are convinced the driver is going to wreck the car. Suppose pulling that emergency brake might also lead to a wreck. Are you moprally confined to either pulling the brake or sitting back and enjoying the ride? Or do you try to persuade the driver to slow down and change direction as soon as it can be done safely?
The Democrats are certainly
The Democrats are certainly in a hole of their own making. If Maliki does begin to meet the benchmarks, if Iran or Syria trip the wire, if Abbas and Sinora can get sufficient Sunni backing, Democrats will be falling into deeper waters. Add to that other geopolitical events alarming the West and Democratic candidates will sound foolish chirping hawk. Now they have zero association with any attempt to promote Democracy, support allies, eliminate terrorists, oppose despots or even prevent proliferation. There are many "ifs" above, but certainly Democrats are presently caught politically rejecting Bush's position as "already failed" while pseudo-substituting another plan which begins and ends in greater failure.
Well,
"There must be some folks among those opposed to our current path whose oppisition[sic] comes from a genuine sense that we're making the wrong choice but who also appreciate the potential for calamity in the wake of precipitous change in course."
Yes, I'd certainly agree with that. As a war supporter, I'm certainly opposed to withdrawal and/or a defunding. I support the President's plan, as it really the only option right now that won't lead to disaster. I respect the position of those who sincerely oppose the plan, or the war in general, yet acknowledge the reality of a precipitous withdrawal. It's a rock and a hard place.
OTOH, practically the entire Democratic leadership has opposed the surge plan, and effectively called for a "responsible" drawdown of troops. The Dems are torn between the irrational (although in many cases sincere) passions of the base, and the political reality of the consequences. At the end of the day, the war won't be defunded, because they don't want to, and they can't (politically). It's a tough bind.
On a side note, back to the question of Congressional authority, it is basically true that Congress has the power to authorize war (via UMF resolutions, or declarations), but once authorized the President has sole authority to decide how the troops are used, assuming those decisions are lawful. Not that they can't use their debating power to try and change his mind, or speak out. Congress probably cannot defund specific missions, but they can (not that they should, mind you) defund the whole conflict.
I'm thinking about this in terms of the still-unsettled FISA debate. As one who believed that the President overstepped his authority, and needed Congressional approval in order to approve the program, it was my view that Congress had the power to enact FISA, under their explicit authority to makes laws concerning the Armed Forces, and "land and capture." The difference here, as I see it is that Congress has clearly given the President authority via the IWR, and now all decisions regarding how troops are used, are entirely up to the C-in-C, and Congress can only intervene if laws are broken, or to defund the war.
Whew, that was lengthy.
"In the world you will find tribulation, but be of good cheer, for I have overcome the world."
John 16:33