Congressional War Power and the Iraq "Surge": Can Congress Restrict the Number of Troops in Iraq?
To answer my own question - Yes. But not in the way that is being discussed today by Senator Kennedy:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1. Prohibition on use of funds for escalation of United States forces in Iraq.Notwithstanding any other provision of law, no Federal funds may be obligated or expended by the United States Government to increase the number of United States forces in Iraq above the level for such forces which existed as of January 1, 2007, without a specific authorization of Congress by law for such an increase.
Of course, as a practical matter, the President can and will veto any such legislation. But even if such a veto could be overridden, the law would be an unconstitutional violation of the separation of powers, impinging on the President's power as Commander in Chief in Wartime. In order to act in the manner Senator Kennedy wishes, the Congress must strip the President of the power the Congress granted him to wage war in Iraq. To wit, the Congress needs to "undeclare" the Iraq Debacle by repealing the Iraq War resolution. A new resolution can be approved authorizing the use of force in Iraq for a purpose the Congress wishes, but I believe Senator Kennedy is wrong when he says:
In October 2002, Members of Congress authorized a war against the regime of Saddam Hussein, not to send our troops into a civil war. I voted against that resolution and feel an escalation of this war only compounds the original mistake of going in the first place.
Congress authorization was broader than this:
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
This blanket grant of war power to the President was a disgrace. But it was done. And now it must be undone. More.
Would a repeal of the Iraq War Authorization be subject to Presidential veto? I believe it would not be. The argument that it would be would be based on Article 1, Section 7, of the Constitution:
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
Admittedly, the text seems clear. Every "Vote" shall be presented to the President. The problem is the statements of the Founders. For example, James Madison said:
[I]t is necessary to adhere to the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."
And Alexander Hamilton, in Federalist 69, said:
It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.
To provide the President the power to veto a Congressional decision to END a war would run contrary to what Madison and Hamilton were preaching - that a President can not maintain a state of war. This is an occasion, in my opinion, where the plain meaning clearly runs contrary to the original understanding of the Constitution.
All that said, it seems clear to me that what Kennedy is proposing, supported legally here in Marty Lederman's unfair attack on Joe Biden, is NOT consistent with the Constitution. Lederman wrote:
Is it really imaginable that any reasonable constitution-writers -- let alone our own Framers, suspicious as they were of unchecked executive military power -- would disable the legislature from correcting the Executive's mistake under such circumstances [such as the Iraq Debacle]?
The answer is no. But the Framers, in my opinion, envisioned the Congress using its power to declare and end wars, not attempt to micromanage a war. Federalist 74 makes this crystal clear:
THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States." . . . Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.
The bottom line is clear. WHETHER the United States enters war or CONTINUES at war is the exclusive decision of the Congress. Bt the CONDUCT of that specific war, subject to Congress power of military rulemaking (on torture, the UCMJ, the Geneva Conventions, etc.), belongs exclusively to the President.
The Congress' power here seems clear to me. IT can END the Iraq war. But it can not dictate how it is conducted on military questions. That power belongs to the President.
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