What did the Framers fear?

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. . . .

Hamilton could not be clearer. The Founders did not fear military coups. They feared warmongering Presidents. For that reason, the Founders gave to the Congress the power to declare war and authorize military action. For the reason, the Founders insisted upon Congressional control of military spending. for that reason, the Founders insisted that the Congresss review military spending every two years.

But what of the conduct of war? What did the Founders envision with reagrd to that? Who has the power? Hamilton again is clear:

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.

It is impossible to square Balkin's theory of Congressional control of the conduct of war with Federalist 74. I agree with Hamilton, not Balkin.

But what power does Congress have in the conduct of war? Balkin states the following concern as the justification for his view of strong and specific Congressional control of the conduct of war:

In order to secure civilian control of the military, the civilian authority that controls the military must itself be subject to legal controls by the other branches; otherwise it will be tempted to use its control over the military to dominate the remainder of civilian government. . . . The framers well understood that incompetent or vainglorious leaders have moved from one unwise military conflict to another in order to dominate the political agenda and maintain their political control. Because national security is the source of the President's political independence and rhetorical authority, Presidents who lack good judgment will be tempted to use that independence and that authority for all that they are worth. Such a President will increasingly identify the good of the nation with himself and with his ability to make decisions; he will castigate critics as unpatriotic or as undermining the military chain of command in time of war. This is Caesarism by a different route. Thus, precisely because the President is Commander-in-Chief, and ultimately in control of the military, someone else in civilian government who is not under his control must be able to check his adventures and hold him accountable to law.

No disagreement. What reasonable person would disagree with that? But Balkin then makes an illogical jump:

That is why the two different theories of "Commander-in-Chief" are inconsistent with each other. You can have the President exercise civilian control over the armed forces. (Theory one). And you can have the President effectively immune from Congressional control over how he uses the armed forces in his control. (Theory two).

What? This is absurd. There is no theory two. The Congress decides if we go to war. The Congress decides if we stay at war. The Congress decides if we even have an army. What is Balkin talking about? He says

But you can't have both. Otherwise Presidents may use the military to maximize their political power and to minimize legal constraints on their actions. This lethal combination ultimately destroys republican government. In the alternative, the country may get an incompetent President who gets the country into disastrous and wasteful conflicts with no effective way to stop him. That tempts Congress to turn to the military to discipline or forestall the President, which ultimately undermines civilian control of the military. What the Congress gains by stopping a runaway President it loses by weakening the principle of civilian control in encouraging the military to act as a counterweight to the White House.

Congress turning to the military? Whatever is Balkin talking about? Balkin concludes with a statement I think we all agree on:

. . . The President must regain the trust of Congress before he can usefully engage in saber rattling. Until he does so, Congress must rein him in. The current Democratic strategy of nonbinding resolutions, I fear, will not be enough. They will be too easily disregarded. The Democrats have assumed that nonbinding resolutions will signal to the President that he is isolated politically. That will do nothing. This President already knows that he is isolated politically. He already knows that the public is against him and he plans to proceed in any case. Like any headstrong individual, this President needs to understand that there will be real consequences for not acting responsibly.

Amen Professor Balkin. And the Congress has the power - it is called the Spending Power. Balkin looks to Article 1, Section 8 of the Constitution for the power Congress should exercise. I have touched on this before:

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.

I do not understand this need for legal contortions. Congress has all the power it needs - it can stop funding the Iraq War.