ACSBlog: The Blog of the American Constitution Society

Senator Edward Kennedy (D-MA) just announced that he will introduce the following bill:

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.

As Professor Neil Kinkopf explains in a recent briefing published by ACS:

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.

Additionally, the Supreme Court has interpreted this powers to encompass a broad constitutional authority for Congress to limit the commander-in-chief:

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.