The War Power: What the Congress Can Do; What The President Can Do

In the Judiciary Committee hearing on "Exercising Congress' Constitutional Power To End A War," chaired by Senator Russ Feingold, one of the more bizarre aspects of the testimony presented was that it actually had little discussion of Congress' power to end a war and focused instead on Congress' power to regulate the President's management of war. The other bizarre aspect of the testimony was the utter disregard for the existing Iraq Authorization To Use Military Force. It is necessary to remind just how awful this resolution was:

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 . . .

Indeed, Democratic politicians and legal scholars have been utterly disingenuous in their discussions on the subject. I'll explain why on the flip.

See also Rep. Brad Miller discusses the issue with Secretary Albright.

Consider the testimony of Walter Dellinger (See also letter from law professors (PDF):

What is a valid exercise of congressional control over war making? Presidential administrations have generally acknowledged that Congress may by legislation determine the objective for which military force may be used, define the geographic scope of the military conflict and determine whether to end the authorization to use military force. . . . A declaration of war by Congress is in effect a blank check to the Executive to conduct military operations to bring about subjugation of the nation against whom war has been declared. The idea that while Congress may do this, it may not delegate a lesser amount of authority to conduct military operations . . . is both utterly illogical and unsupported by precedent.

Accepting these statements, which I believe are questionable as stated, that simply is not what the Congress has done. Let us revisit the authority the Congress granted the President on Iraq:

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; . . .

The President WAS granted a blank check on Iraq. To ignore this fact is to not argue the issue honestly. And that, I am afraid is what Democratic legal scholars have been doing.

Dellinger stated:

The suggestion that Congress, if it authorizes the use of military force in a country, cannot place limits on the size of the military contingent deployed to that country is unpersuasive.

Supposing this is correct, I think as stated by Dellinger it is not, that is NOT what the Congress did. To argue they COULD have is rather beside the point now. They did not.

But Dellinger does get to the REAL point in a roundabout way:

One final point. The spending power is a source of some confusion. Invocation of that power is not necessary in order for Congress to legislate limits on the use of military force. If a limitation on the use of force is within the authority of Congress, a direct limitation is binding on the executive branch. It need not take the form of a restriction on spending. (Conversely, if a spending limitation did invade the President's authority as Commander in Chief of the armed forces, as would be the case, for example, with limits on his authority to appoint commanders and direct battlefield operations, it is unconstitutional and the President would be justified in not abiding by such limits.) In the present circumstances, Congress has the authority it needs to legislate limits on the use of force in Iraq. As the scholars' letter of January 17th set out in some detail, the Constitution confers upon Congress numerous powers over national defense and the governance of the armed forces. Congress, acting pursuant to those ample wellsprings of constitutional authority, may set bounds on the president's discretion about the scope and duration of military action. A president, in our constitutional republic, is obligated to adhere to those limits.

This is, in my view, simply incorrect. Let us consider the arguments presented by the law professors. They list the relevant enumerated Article 1 powers:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.

After listing these powers, the law professors summarily conclude that

The provisions plainly set forth an extensive role for Congress that goes far beyond the initial decision of declaring war and subsequent decisions regarding its funding. This mass of war powers confers on Congress an ongoing regulatory authority with respect to the war.

Indeed it does. But these powers DO NOT confer the power to direct the conduct of the war. The law professors are performing a disingenuous sleight of hand here. Their next paragraph demonstrates this:

As Commander in Chief, the President's role is to prosecute the war that Congress has authorized within the legitimate parameters Congress has set forth.

Of course here is the rub, Congress gave President Bush a blank check in Iraq. The legitimate parameters are "to use the Armed Forces as he deems necessary and appropriate to defend the national security of the United States . . ." To alter these parameters, the Congress MUST repeal the Iraq Authorization To Use Military Force. Some have argued that President Bush requires an additional force authorization because the Iraq AUMF was for defeating Saddam. This is preposterous. The Congress gave Bush a blank check in Iraq. To their everlasting shame.

The law professors then cite a number of Congressional bills that limited the number of troops deployed. The problem with their examples however is that all but two was an exercise of the Spending power, which no one disputes as being within the Congress' power. And the one WARTIME exception was a 1974 law that directly limited the number of troops in Vietnam. That bill was, imo, unconstitutional. But Richard Nixon in 1974 was hardly in a position to dispute the issue. I believe it is of no precedential value.

The law professors then miscite the Steel Seizure Cases to support their argument that "the President is bound by statutory restrictions in wartime." Of course the President is bound by constitutional statutory restrictions. But the law professors wrongly imply that the Steel Seizure Cases support their argument that the Congress can impose statutory restrictions on the SPECIFIC conduct of military operations, as opposed to general rules governing the military. The Steel Seizure Cases simply do not stand for that proposition. Nor do Rasul, Hamdi and Hamdan, also cited by the law professors. Instead, Justice Jackson's concurrence, which the law professors fully endorse, expressly limited its holding to DOMESTIC restrictions:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.

Justice Jackson's differentiation between domestic and external restrictions on the Commander in Chief power is consistent with the arguments we raised regarding President Bush's violation of FISA, and it is completely in line with the understanding of the Federalist Papers.

For example, in Federalist 74, Hamilton wrote:

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.

In Federalist 69, Hamilton described the division of the war power thusly:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. 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.

And the Federalist Papers also speak to the REAL questions, the ones the law professors avoided in their mad rush to defend the idea of Congressional micromanagement of the Iraq war, to wit, can Congress end the war, and if so, how? The Federalist papers provide the answer. In Federalist 24, Hamilton wrote:

that standing armies [need not] be kept up in time of peace; [n]or [is] it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. . . . [T]he 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; . . . there [is], 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.

Here Hamilton states clearly that the power to end wars resides in the Congress most clearly through the power of the purse and the EXPRESS requirement that no appropriations for a standing Army last for more than two years. In this way, any war would require a de facto reauthorization from the Congress every two years by its decision to fund the war.

In Federalist 26, Hamilton wrote:

Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. . . . The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. . . . The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. . . .

What is clear is that all this legal tapdancing get us nowhere. To end the war, the Congress can do one of two things, or preferably both: it can repeal the Iraq AUMF, and/or it can refuse to fund the war. This sophistry from Democrats, politicians and legal scholars, does neither us nor our principles credit.

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    I wonder if the Dems want to fail (none / 0) (#1)
    by roy on Thu Feb 01, 2007 at 11:33:34 AM EST
    (Wild speculation ahoy)

    If the Democrats manage to effect a major change in the war, they'll have to accept the blame for any real or imagined downsides.  Even if their plan is a good idea, it isn't a magic bullet.  Iraq will still be in a bad way.  American troops will still get killed, if not in Iraq then in the Global War on Terror.  This isn't entirely fair, but it's how the GOP will play, and it'll work on some voters.

    If the Dems merely "try", and fail, then the GOP continues to get the blame for all bad things in Iraq.  The Dems get credit for defying Bush, and they get to misrepresent Bush as defying their Constitutional authority.

    I agree, generally. (none / 0) (#2)
    by Gabriel Malor on Thu Feb 01, 2007 at 01:53:59 PM EST
    BTD, I'm really enjoying your War Powers series of posts and I generally agree with your conclusions about the extent to which Congress can interfere with Executive management of war.

    I was particularly amused that the law professors cited plenty of authority that supports your view (e.g. Ex parte Milligan) but were only able to fall back on their list of constitutional principles to support their own. As you've shown, that list is not very convincing.

    I also thought it was a mistake for the professors to reference Youngstown. They wrote, "presidential power to act in the absence of Congressional action must not be equated with presidential power to ignore statutory restrictions enacted pursuant to Congress' constitutional authorities." The problem with their argument is that, in this case, the president is not acting "in the absence of Congressional action." Rather, the opposite is true: the President is acting under the AUMF.

    And the second part ignores the whole purpose of the Committee hearing, which is to determine whether troop restrictions come within "Congress' constitutional authorities."