The Puzzling Persistence of Liberal Doubt About Congress's War Powers

Sunday, March 04, 2007

http://balkin.blogspot.com/2007/03/puzzling-persistence-of-liberal-doubt.html">The Puzzling Persistence of Liberal Doubt About Congress's War Powers

Marty Lederman

In today's New York Times Week in Review, Jeffrey Rosen has an article that begins with the following confident assertions:


In support of this thesis, Rosen quotes NYU Law Professor Sam Isaacharoff as follows:


Sam's hill-charging example echoes that of his collegue Noah Feldman, who wrote similarly in the New York Times four weeks ago that "no one believes Congress could legitimately pass a law ordering the Army to take one hill instead of another." From this now-commonplace "take no hill" hypothetical statute, Noah's argument runs parallels to that of Jeff and Sam: that the Constitution prohibits "armchair quarterbacking" from Congress, such as (Noah's example) prohibiting the President from sending more troops to Baghdad:

There is strong reason to think that the president is within his powers as commander in chief -- and beyond the reach of Congress -- when he allocates troops. Congress would be on much firmer ground if it exerted its power to pull financing for all troops in Iraq than it would be if it tried to dictate precise troop numbers. This may sound strange: after all, if Congress can bring all our soldiers home, why can't it stop the president from sending more over? Yet the paradox is more apparent than real. The constitutional structure of divided powers is designed to discourage Congressional intervention in particular tactical decisions. Congress is the ideal body for expressing the people's will that a war as a whole should be over, but its 535 members are very poorly suited to laying out the order of battle. For that task, a single supreme commander is necessary. Even the War Powers Act treats Congress's decision about going to war as an on-off toggle, not a dimmer switch.

The most remakable thing about this sort of argument--and similar remarks from the likes of Senator Biden--is its source. Folks such as Noah, Sam and Jeff are hardly robust defenders of this President's military endeavors, and in other contexts some or all of them have written forcefully of the dangers of unchecked executive authority. But when it comes to a question of such fundamental importance as the basic contours of the ongoing conflict in Iraq, all of a sudden these thoughtful observers begin to wring their hands fretfully about how powerless the legislative branch is to do anything short of stopping the war altogether. And in the meantime, no other than John Yoo, also in the New York Times, has argued that "ot only could Congress cut off money, it could require scheduled troop withdrawals, shrink or eliminate units, or freeze weapons supplies." (In Rosen's article today, Yoo is quoted as saying that Congress can use its power of the purse as "a scalpel as well as a baseball bat.” )

http://balkin.blogspot.com/2007/03/puzzling-persistence-of-liberal-doubt.html">more...

January 4, 2007 02:29 PM Posted By News Questions & comments 18

Guest Blogger: The Congress As Surge Protector

By Neil Kinkopf

Snip...

Congress Can Forbid the President from Escalating the Iraq War without Renewed Authorization

Even if the President does not submit his plan for congressional approval, Congress is constitutionally empowered to require him to do so.

The Constitution grants Congress extensive war powers – so extensive, in fact, that Chief Justice John Marshall once wrote that “The whole powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides ….” (Talbot v. Seeman (1801).) These powers include the power to declare war; grant letters of marque and reprisal; raise and support an army and navy; make rules for the government and regulation of the land and naval forces; provide for the calling forth of the militia; and to lay taxes and appropriate funds to provide for the common defense, with the proviso that no appropriation for such a purpose can be for more than two years. The President is made the commander in chief and is authorized to appoint, with Senate confirmation, such military officers as Congress may by statute create.

This structure is an intentional departure from the British approach. The King was set up, in Blackstone’s phrase, as the “generalissimo”; he was authorized to initiate and to prosecute war of any scope on his own authority. Under the U.S. Constitution, by contrast, it is Congress that has the power to initiate and regulate war, while the President is authorized to command the resulting war effort.

As Commander in Chief, the President’s role is to prosecute the war that Congress has authorized. The President may not go beyond this authorization.

This understanding of the President’s power as Commander in Chief is plain enough from the text of the Constitution itself. It has also been the consistent interpretation of the Courts. Chief Justice John Marshall set forth this interpretation in a series of cases arising from the naval war with France. Most notably, in Little v. Barreme, Chief Justice Marshall held that the President’s war powers are defined by statute and may not exceed statutory limits.

Snip...

The Supreme Court has been clear and unambiguous. When Congress, acting in the vast areas of overlapping power, tells the President “no,” the President must comply. Thus, Congress may limit the scope of the present Iraq War by either of two mechanisms. First, it may directly define limits on the scope of that war—and forbid the President from exceeding these limits—such as by imposing a ceiling on the number of troops assigned to that conflict. Second, it may achieve the same objective by enacting appropriations riders that limit the use of appropriated funds. Indeed, the reason that the Constitution limits military appropriations to two years is to prevent Congress from abdicating its responsibility to oversee ongoing military engagements.

Snip...

Before embarking on any escalation, the President should seek the assent of Congress and the American people. If he will not, the American people should understand that Congress has the power to stop him.

Neil Kinkopf is an Associate Professor of Law at Georgia State University. He served as a constitutional advisor to the Clinton Administration from 1993-1997 in the Department of Justice’s Office of Legal Counsel.

link

It makes no sense to claim, as some do, that the original authorization gave Bush all of the authority to do as he has, and then assert that it can just remain while they cut off the money.

Cutting off one supplemental request won't direct Bush to do anything. If you accept Kucinich's claim that there's money already in the pipeline to take care of the troops in a withdrawal, then you have to accept that Bush also has access to the money to continue his occupation, claiming that he's still pursuing the original false mandate he thinks is in th original resolution. Fiddling with the funding alone risks that Bush will continue anyway and stretch the resources and our troops even further as he has disregarded every other indirect admonition so far.

If Congress wants Bush to do something they now need to pass a binding resolution telling him so. Otherwise they can't claim they directed him to do anything as they squeeze the funding which really doesn't get to the troops now.