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:


(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.

< Bush Judicial Nominees Ask to Withdraw | Apple iPhone or Treo? >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Man they (5.00 / 1) (#3)
    by Che's Lounge on Tue Jan 09, 2007 at 09:27:47 PM EST
    really let the genie out of the bottle in 2002.

    And he's all messed up on who knows what. Jeebus we are so screwed. Yet that's a damn site better than what's happened to those poor people.

    This is just criminal. No one wants Iran's influence to expand in the region and that is exactly what this idiotic mistake has done. It is obvious that Bush does not understand what is happening or how his adminstration precipitated it. No matter. That's Cheney's job. But the VP is not the least bit interested in our welfare. He is only interested in power. It's just unfathomable that these men are still running the country. They are a threat to our security. They have put us at greater risk with their policies. "Give us what we want and we'll protect you." But why should "terrorists" hit us here when they can retaliate against plenty of young american targets right in front of them, and without the long plane flights. So the warmongers stay rich and powerful, and we get the daily odor reports and sprinkler parts that "initially tested positive" to keep our NASCAR nation distracted and full of patriotic fervor. I try to turn on the news and get "The Donald", Rosie and Babs. WTF? Who cares? No one, but we have to be distracted. And what have we got to show for it? One well hung dictator.

    Iraq was no threat to the U.S. (5.00 / 1) (#7)
    by Dadler on Wed Jan 10, 2007 at 09:00:33 AM EST
    So the entire basis for this act is bogus.  Would you continue financing a program that claimed it was aimed at stopping the threat from ghosts?  

    The only answer is bring them all home now, period, end of story.  Anything else is simply dressing up a mass murder in nicer clothes.  As long as we are there, the Iraqis are not free to determine their own future.  When the overwhelming majority of them want us gone, and we refuse to listen, it is crystal clear that we couldn't care less about Iraqis, that this is all about us.  

    We are so full of sh*t.

    This war is not a "disgrace" but a crime (1.00 / 1) (#5)
    by Andreas on Wed Jan 10, 2007 at 12:33:07 AM EST
    "Big Tent Democrat" wrote:

    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.

    This is an argument which might be used by the criminals in the White House in the unlikely event that the Democrats vote to prohibit the "use of funds for escalation of United States forces in Iraq."

    But the whole argument only makes sense if one thinks that this war is legal. It is illegal according to the Nuremberg principles. Those who voted for it are war criminals themselves.

    More bluntly: "Big Tent Democrat" is defending war crimes.

    Congressional Options (none / 0) (#8)
    by Gabriel Malor on Wed Jan 10, 2007 at 04:38:16 PM EST
    [I saw this post this morning before heading to campus and desperately wanted to comment on it. Unfortunately, the internet service has been out all day here on campus. Well, until just a few minutes ago, anyway. Having dispensed with all the waiting emails, papers put on hold, and other daily grind, now I've got just enough time before my next class to talk about the issue of Congress' options with regard to Iraq.]

    First, I agree with BTD partially. When he notes that Senator Kennedy's bill doesn't hold constitutional water, he's right on target that way in which Kennedy is micromanaging executive decisions will never be tolerated by the courts (if it were to make it pass Congress and then pass the veto). It is this language specifically that gets Kennedy's bill in trouble:

    [N]o 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.

    I think the problem has two parts. (1) This act impliedly contradicts the second AUMF which gave the executive just the kind of authority to adjust troop levels. Now, Congress certainly has the power to overturn its earlier acts, however, this bill doesn't seem to replace or modify the second AUMF. (I say "seem" because I'm having trouble finding the exact text of the proposal. I'm working from the Senator's website explanation of the legislation.)

    What this means is that Congress, should the bill be passed and signed, would be giving the executive mixed signals. As a practical matter, that's not a good way to fight a war. As a legal matter, the courts will be asked to resolve the contradiction.

    (2) That brings me to the second part. It's unconsitutional for the Congress to directly manage war because it's an usurpation of the executive's Article II power. Congress gets to appropriate money--that is devote it to a specific purpose. It can put whatever conditions and requirements it wants (mostly) before granting the appropriation, however, once appropriated, Congress' role becomes more limited, especially when it comes up against the constitutional powers of the executive.

    Second, I disagree with BTD that Congress' only remedy to the Iraq war is to end it. I think it entirely consistent with Congress' constitutional powers to refuse to authorize all the funds that are requested by the executive for war. Congress can refuse to fund the executive. That's part of its enumerated powers under Article I sec. 8.

    So, Congress can lower the levels of funds it gives the the executive to wage war. What it cannot do is tell the executive how to use the funds it authorizes for war. That's where it runs afoul of Article II. So, legislation giving the Administration only $40B rather than $80B in appropriations would be constitutional. Saying that the executive can spend no money on moving troops around, however would not.

    In that way, Congress can impact the ability of the executive to wage war short of
    "undeclaring" it.

    Finally, in response to Andreas, there are no legally binding "Nuremberg principles." Nuremberg is fantastic precedent for International Military Tribunals. But it set no law on any of the countries involved.

    For whatever reason, the myth of "Nuremberg principles" has been bandied around quite a bit the last few days. I saw it first in the reporting on the fellow who is currently facing a court-martial for refusing to deploy. Sadly, the sloppy reporting on that has perpetuated the myth of "Nuremberg principles."

    For those interested in knowing which principles of international law might actually apply to the actions of Congress and the President, I encourage you to stick to the Treaties and Conventions that we've actually, y'know, signed. Also (and even though we haven't signed them), the Additional Protocol I of 1977 to the GenCons and the Rome Statute because even though we're not party to them, they indicate the current direction of international law and customary international law.


    Nuremberg principles (none / 0) (#11)
    by Andreas on Wed Jan 10, 2007 at 05:31:48 PM EST
    Gabriel Malor wrote:

    there are no legally binding "Nuremberg principles." Nuremberg is fantastic precedent for International Military Tribunals. But it set no law on any of the countries involved.

    The war criminals in power in the US obviously do not care for international law. But that does not change the fact that the "Nuremberg principles" are binding international law. Those who violate this law must be put on trial and punished.

    Have a look at these pages:

    Nuremberg Principles

    Formulation of the Nürnberg principles (right column)

    Supreme Court Justice Robert Jackson formulated what was the universal view until a few years ago:

    In 1945-46, the United States was the most emphatic advocate of the proposition that the waging of aggressive war constituted a crime. Supreme Court Justice Robert Jackson, who headed the American prosecution staff, stated that the legal principles underlying the Nuremberg prosecutions were universally valid. He insisted that "if certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others that we would not be willing to have invoked against us."

    Much has changed since those words were uttered.

    WSWS Chairman David North denounces Iraq war at Dublin debate

    By David North, 15 October 2004


    You flunked (none / 0) (#12)
    by Sailor on Wed Jan 10, 2007 at 05:46:09 PM EST
    There were only 2 'International Military Tribunals', one was Nuremberg, the other the Far East Tribunal.

    The  "Nuremberg principles" are no myth, they were the guidelines for determining what constitutes a war crime. the Nuremberg Principles had been affirmed by the General Assembly which means we are a signatory to them.

    BTW, the US has signed Additional Protocol I of 1977, it just hasn't been ratified yet.

    Next time, show work.


    Tsk tsk tsk (none / 0) (#14)
    by Gabriel Malor on Wed Jan 10, 2007 at 05:56:56 PM EST
    The myth I am referring to is the idea that the Nuremberg principles are binding law. That's exactly what I meant when I wrote:

    [T]here are no legally binding "Nuremberg principles."

    And you are right to note the two IMTs. I had a brain-fart and meant that Nuremberg served as precedent for International Criminal Tribunals, most notably the ICT Rwanda and the ICT for the Former Yugoslavia. The Special Court for Sierra Leone and the Truth and Reconciliation Commission in South Africa also owe some to the legal pioneers at Nuremberg.


    Charter of the Nuremberg Tribunal (none / 0) (#9)
    by Edger on Wed Jan 10, 2007 at 05:11:57 PM EST
    Richard Falk
    Professor Emeritus of International Law and Practice at Princeton University
    The Circle of Responsibility
    The U.S. prosecutor at Nuremberg, Robert Jackson, emphasized that war crimes are war crimes no matter what country commits them. The United States more than any other sovereign state took the lead in the movement to generalize the principles underlying the Nuremberg judgment. At its initiative, the General Assembly of the United Nations, in 1945 unanimously affirmed "the principles of international law recognized by the Charter of the Nuremberg Tribunal" in Resolution 95(I). This resolution was an official action of governments. At the direction of the UN membership, the International Law Commission, a body of international law experts from all the principal legal systems in the world, formulated the Principles of Nuremberg in 1950. These seven Principles of International Law are printed in full in the adjoining box, to indicate the basic standards of international responsibility governing the commission of war crimes.
    The substantive content of international law is contained in a series of international treaties that have been ratified by the United States, including principally the five Hague Conventions of 1907 and the four Geneva Conventions of 1949.

    These international treaties are part of "the supreme law of the land" by virtue of Article VI of the U.S. Constitution. Customary rules of international law governing warfare are also applicable to the obligations of American citizens.

    Indeed. (none / 0) (#10)
    by Gabriel Malor on Wed Jan 10, 2007 at 05:19:42 PM EST
    As the professor says: look to the "international treaties that have been ratified by the United States." Those are legally binding (the ones that are self-executing, that is; the others require extra Congressional action). The "Nuremberg principles" are not.

    semantics (none / 0) (#16)
    by Edger on Thu Jan 11, 2007 at 12:40:23 AM EST
    PLENARY, dammit (none / 0) (#1)
    by froomkin on Tue Jan 09, 2007 at 07:13:38 PM EST
    Congress's power of the purse is plenary.   That means it CAN cut off funding for a war.  Even John Yoo accepts this.  The same goes for part of a war.  (And especially as there hasn't been a formal declaration of war, the funding is what drives the war.)

    Congress can't decide who will command the army, or which units will be sent. But it certainly can decide how many persons there will be in the armed forces, and what equipment they will have. And it can decide where they go.

    Congress could, for example, say that no tactical nukes can go to Iraq.  Or no tanks.  Or no rifles.  And that's all equally micro-managing to deciding how many troops can go.

    Congress makes the rules of war, and can decide if certain tactics violate our law.  For example, Congress could ban the bombing of civilian areas by air.  

    I don't see how your claim that it's all or nothing works.  Which of the above examples would you not accept?

    Congressional Power (none / 0) (#2)
    by Fredo on Tue Jan 09, 2007 at 08:44:27 PM EST
    Whether they can do it or not is a moot point: they won't.  You heard if first from Fredo, and you can take it to the bank.

    BTD, where does it say (none / 0) (#4)
    by cpinva on Wed Jan 10, 2007 at 12:06:31 AM EST
    that once congress authorizes an act, they are committed to fully funding it forever? i don't see that in the constitution, could you cite the section?

    congress alone has the power of the purse, it can fund or not fund, solely at its discretion. not funding isn't the same thing as revoking a prior act, it merely makes it that much more difficult for that act to continue, or be unilaterally expanded on. such is the case with sen. kennedy's proposal.

    congress also has the sole authority to declare war, which it hasn't done in this case. while the president is the CIC, he lacks the power to unilaterally start and fund military ventures.

    while clearly bush will veto this bill, he'll have a difficult time finding judicial support for ignoring it, should his veto be overriden.

    were that not the case, bush wouldn't be required to continually go before congress and ask for additional funds, they'd be there automatically. if bush doesn't like it, well, tough cookies. it is then incumbent upon him to convince congress to provide the necessary funding.

    i believe your logic is flawed. congress needn't totally revoke their original mandate, in order to regain control of their budgetary powers.

    maybe halliburton will provide the cash.

    Congresional Leaders Speak (none / 0) (#6)
    by Fredo on Wed Jan 10, 2007 at 08:25:15 AM EST
    The estimable Charlie Rangel, elaborating on the plenary Congressional power of the purse and the use of that power to block any "surge" of troops:

    "A decorated Korean War veteran, Mr. Rangel seemed acutely sensitive to the potential consequences of voting against money for the troops: 'If my black ass was in Korea during the war and people got fed up with it,' he said, 'and they cut off the money so I couldn't get some snowshoes or underwear--well, goddamn, you are cutting the wrong people.'"  (New York Observer, January 15 edition)

    repeal the act (none / 0) (#13)
    by diogenes on Wed Jan 10, 2007 at 05:54:54 PM EST
    The democrats are welcome to go on the record to vote to repeal the authorization about the war.  Since the Senate is so tight, maybe Hillary will have to actually have to take a stand for the record and deal with the consequences.  

    Further thought (none / 0) (#15)
    by Gabriel Malor on Wed Jan 10, 2007 at 08:47:52 PM EST
    Something else occurred to me while I was eating dinner. If this bill or one like it were enacted, it  might adversely affect the executive's dicisions regarding prosecution of the war. Let me put it like this:

    If the executive knows that once he reduces levels in Iraq, he can never increase them, he has no reason to pull troops out ever. As it is, over the last four years, troop levels have fluctuated between 120 and 180 thousand. Following this bill or one like it, a long-term disincentive would exist for reducing the troop levels--even if there is only a need for fewer troops in the short-term.

    Thanks BTD (none / 0) (#17)
    by Slado on Fri Jan 12, 2007 at 09:02:25 AM EST
    I asked the question you answered very well in this post...thanks.

    I am split on the latest development but I will say the dems are yet again in a tough spot.   They want to end the war either for personal or political reasons but they can't abandon the troops and they can't legaly as you state run the war by passing resolutions.

    They should in ernest try to pass legislation ending the war if they really want it to end.