Guest Blogger: The Congress As Surge Protector
Reports indicate that President Bush plans to respond to the deteriorating situation in
The President’s plan to escalate the war in
Congress Can Forbid the President from Escalating the
Even if the President does not submit his plan for congressional approval, Congress is constitutionally empowered to require him to do so.
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
This structure is an intentional departure from the British approach. The King was set up, in Blackstone’s phrase, as the “generalissimo”; he was authorized to initiate and to prosecute war of any scope on his own authority. Under the U.S. Constitution, by contrast, it is Congress that has the power to initiate and regulate war, while the President is authorized to command the resulting war effort.
As Commander in Chief, the President’s role is to prosecute the war that Congress has authorized. The President may not go beyond this authorization.
This understanding of the President’s power as Commander in Chief is plain enough from the text of the Constitution itself. It has also been the consistent interpretation of the Courts. Chief Justice John Marshall set forth this interpretation in a series of cases arising from the naval war with
In the naval war with
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.
The President Should Seek Congressional Assent for His New
The Constitution’s drafters understood the immense national sacrifice that war entails. Moreover, they understood the advantages that would accrue to the President during times of war. For these reasons, the Constitution assigns Congress the power to initiate war and to define the parameters of military operations. The Constitution’s structure, then, clearly contemplates that important decisions regarding the scale of war are to be made not by the President alone, but through the democratic process. This is why the Constitution mandates Congress’s assent not only to the initiation of a war but to its size and scope.
To be sure, Congress has authorized the war in
- On behalf of the Bush Administration, Secretary Rumsfeld testified, against the advice of General Eric Shinseki, that the Iraq War could be successfully waged with troop levels at or below present number.
- Secretary Rumsfeld also said that the war would take “six days, six weeks. I doubt six months,” and that, quite the opposite of an insurrection, American and coalition forces would be greeted as liberators.
- Former Deputy Defense Secretary Paul Wolfowitz testified that the war would cost the nation very little, and that Iraq’s oil revenues would allow it to “finance its own reconstruction.”
The authorization for war in
Before embarking on any escalation, the President should seek the assent of Congress and the American people. If he will not, the American people should understand that Congress has the power to stop him.
Neil Kinkopf is an Associate Professor of Law at
Written By:RT On January 6, 2007 6:19 PM Written By:Neil Kinkopf On January 7, 2007 2:01 PM
RT, Thanks for your comment. The quote you report from Rep. Boyda reflects a fairly common misperception that Congress's only relevant war power is its power of the purse. As you note, that misperception is especially pernicious in the context of a controversial war. NK
Of course Congress can initiate and regulate and the President prosecutes pursuant to authorization; the problem is the ambiguity in the word regulate.
If you mean Congress can authorize the war and lay down some general conditions beforehand, that makes sense. But if those conditions are so burdensome that they prevent effective prosecution of what has been authorized, or if those regulations are so annoyingly frequent and painstakingly narrow that they constitute micromanagement of the war's execution, then it seems like Congress is stepping into the President's shoes.
The Constitution certainly does not envision war fought by committee or war fought by direct democracy. But the above interpretation of the Constitution gives off the false impression that unless we have a plebiscite on every tactical decision made in a war, Congress has abdicated its duty. That defeats the entire point of having a Commander-in-Chief, i.e., an ultimate, unitary decision-maker. The drafters of the Constitution left the prosecution of wars to one rational, efficient decision-maker so as to avoid the problem of the anti-commons that always plagues Congress when it comes to tough decisions.
Somebody needs to educate Joe Biden as well.
There is no question that Congress could enact a law that violates the commander in chief clause. The problem with Snapple Pepsi's post is that, even if we assume that micromanagement violates constitutional law rather than merely represents unwise policy, it is completely beside the point. The decision of what to do with the grave and deteriorating situation in Iraq is not a matter of "annoying" detail. If the President decides, as he appears poised to do, to escalate our troop commitment, he will be making a decision of broad policy that defines the paramters of our engagement in Iraq. Congress should be involved in such decisions. Far from micromanaging, for Congress to remain silent while the President unilaterally (unitarily?) escalates and alters the fundamental nature of our war policy would be an abdication of Congress's constitutional role.
What if Congress passed a new declaration declaring that its previous authorization for the Iraq War would expire at some defined date, with the goal of bringing home our troops by that date.
1) Would that effectively force Bush's hand?
2) If Bush, or any President, failed to comply, wouldn't impeachment be the necessary next step?
It's amazing how prescient this post was given Biden's MTP remarks on Sunday. Good work!
If Congress were to enact a law such as DKM hypothesizes, it would be the President's constitutional duty to "take care that [it] be faithfully executed."
NK: "There is no question that Congress could enact a law that violates the commander in chief clause."
And if it passed over the President's veto, he would be constitutionally obliged not to enforce such a law. I am glad we agree that the Commander-in-Chief clause is not a "stipulation" or an "inkblot," but rather a determinate clause of bounded scope with real consequences.
NK: "The problem with Snapple Pepsi's post is that, even if we assume that micromanagement violates constitutional law rather than merely represents unwise policy, it is completely beside the point."
It seems you assume for the sake of argument that micromanagement by Congress might be unconstitutional. But the problem with that concession on your part comes mere syllables later when you state "If the President decides, as he appears poised to do, to escalate our troop commitment, he will be making a decision of broad policy that defines the paramters of our engagement in Iraq." Who decides what is broad policy and what is micromanagement? What about the gray area in between micromanagement and broad policy? Are these nonjusticiable legal questions or must the Court hear oral argument on war tactics as bullets whizz to and fro on the battlefield? Or should the OLC, a place Professor Kinkopf once worked, have the authority to decide such questions for the President, given the unwritten rule that unelected OLC lawyers like Neil know best?
NK: "Far from micromanaging, for Congress to remain silent while the President unilaterally (unitarily?) escalates and alters the fundamental nature of our war policy would be an abdication of Congress's constitutional role."
How do we determine what "fundamental nature" of a war is? Wouldn't the President make such a determination as the head of the military? Frankly, sending in 20,000 more troops doesn't sound like a broad policy shift or a fundamental change. Indeed, Hill Democrats have been decrying the surge as "more of the same". How can it be "more of the same" if it's a "fundamental" change in the war's nature? You cannot have it both ways, Neil, even if you're a law professor who once worked for the OLC.
Snapple Pepsi makes three observations. The first makes a too-simplistic claim about the nature of the President's constitutional obligations in the face of an unconstitutional statute. That issue is too complicated to be addressed in a single sentence. The President might properly refuse to enforce an unconstitutional statute, but it is impossible to say more without more facts. on this point, I would refer you to the debate surrounding the ABA committee's report on signing statements. Second, Snapple Pepsi attempts to indict my post for introducing a gray area into the law. In fact, it is Snapple Pepsi's own initial post that concedes congressional power to set the parameters of military engagement on the one hand, but claims that Congress cannot make laws that are "so annoyingly frequent and painstakingly narrow that they constitute micromanagement of the war's execution." This raises the gray area. I just don't see how the most momentous decision about Iraq War since the initial authorization can be categorized as "so annoyingly frequent and painstakingly narrow that they constitute micromanagement of the war's execution." Third, I am supposed to be trying to have it both ways (sort of like drinking both Pepsi and Snapple?) because I say one thing and some congressional Democrats may be saying something else. You seem to be confused.
NK: I am supposed to be trying to have it both ways (sort of like drinking both Pepsi and Snapple?) because I say one thing and some congressional Democrats may be saying something else. You seem to be confused.
I'm sorry, Neil, but I thought you were a hive-minded Bush-hating liberal. At least that's the impression I got from your really nasty attacks on John Yoo in this Legal Affairs debate:
http://www.legalaffairs.org/webexclusive/debateclub_presidentialpower1105.msp
NK: "I just don't see how the most momentous decision about Iraq War since the initial authorization can be categorized as "so annoyingly frequent and painstakingly narrow that they constitute micromanagement of the war's execution."
That's a nice try, but illogical. I didn't say that all micromanagement consisted of acts that are painstakingly narrow and annoyingly frequent; I implied that all painstakingly narrow and annoyingly frequent Congressional regulation of Presidential prosecution of a war constitutes micromanagement.
There can be micromanagement that isn't painstakingly narrow (just sufficiently narrow) and that isn't annoyingly frequent (just sufficiently frequent); I also was mum on whether the two prongs shared a functional relationship. It's possible that a broader change done with increased frequency is functionally equivalent to a narrower change done with decreased frequency, or vice versa.
For the record, what introduced the gray area was your use of the term "regulate" and the fact that you haven't provided any criteria for how one objectively determines when the regulation goes so far that it violates the Constitution. Nor have you shown how one determines that a policy/tactical change is "the most momentous". (I suppose we should trust whatever the New York Times Editorial Board says!)
Without the assurance of such objective criteria, one is liable to believe that you simply draw the line wherever you please as a means to further your political ends. And that isn't constitutional theorizing, Neil. It's agitprop.
It is somewhat difficult to tell whether the above-mentioned idiotic remarks by Sen. Biden and Rep. Boyka are born of ignorance or are simply cynical hot-potato-passing. That is to say, some congresscritters seem to find it politically convenient to fob this off on the president, so as to avoid having to take a stand.
This has unfortunately been a more global problem of congressional abdication of its constitutionally central role in matters of war -- its having eschewed the whole idea of declaring war in favor of mushy "resolutions" such as the 1964 Congress's infamous Gulf of Tonkin Resolution (giving Johnson carte blanche to escalate in Vietnam) and the hopefully soon-to-be-equally-infamous 2003 Authorization to Use Military Force. (Not to mention the dog that didn't bark at all -- the use of our armed forces in Afghanistan withhout even this kind of pussilanimous by-your-leave.) All this has aided and abetted the silly Biden-Boyda view (whether it's cyynical or ignorant) which has in turn aided and abetted the efforts of administration's like this one to arrogate all powers relating to war-making in the executive branch.
It seems to me that the lawyers who write about this are writing about the matter theoretically and ignoring budgetary reality.
Everyone is noting that Congress has the power to say no new funds for the surge. However, the Congress has already authorized a war supplemental for this fiscal year. Is it the case, as Emily Bazelton says on Slate, that Congress cannot stop the President from using those funds as he sees fit? Unlike the defense bill proper, that money is partially for the war in Iraq without further restriction.
The Kennedy bill says no funds "may be obligated or expended" to add troops above the level as of January 9. It does not say no new funds. If this were to pass and magically survive a veto, I am unclear about whether it would prevent some bureacrat in the Pentagon from moving alread appropriated money around to pay to send those 20,000 guys over and outfit them. In other words, does Congress have the power to attach conditions to money it has already appropriated?
It seems to me that the lawyers who write about this are writing about the matter theoretically and ignoring budgetary reality.
You're wrong, Ben. The lawyers are in fact arguing precisely about the budgetary reality. Lawyers like Neil know that the President can exercise his executive discretion to take general appropriations and use them however he wants in the absence of Congressional restriction. That's why lawyers like Neil are trying to inherently limit the Art. II powers of the President without discussing the scope of the Art. I powers of the Congress. As a legal matter, there's no reason why Congress couldn't set up retroactive restrictions on already appropriated funds, unless the restriction constitutes micromanagement that cuts into the President's discretion to execute the law. In other words, Congress can do it so long as it doesn't become a separation of powers problem -- and the separation of powers problem is exactly what Neil here has been trying to avoid discussion of. That isn't theoretical: scroll up and read it yourself.
It may very well be that the President has exceeded the authority given to him by Congress in his execution of the war. And it may be that the surge exceeds this authority. The problem, of course, is that no court is going to take this issue up.
So, then, we have the option of Congress passing another bill limiting or revoking the President's power to prosecute the war in Iraq. The problem here, as many have noted, is that Congress doesn't have veto-proof majorities to pass such a bill.
While some have incorrectly argued that the Congress doesn't have the power to stop the President from carrying out his war plan, the broader arguement has been that, given the current political situation, the only real way to prevent the President from carrying out his plan would be to defund the war. These other arguments are only academic.
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If I understand Mr. Kinkopf's ediortial entitled, "The Congress As Surge Protector", it clearly states that Congress has the Constitutional power to stop Bush from increasing the number of troops currently in Iraq. Well, tell me how can we educate the freshman Rep. Nancy Boyda (KS), that the "Commander-In-Chief" is NOT the ultimate decider and that SHE has the power to CORRECT the president, when needed? On Jan 4, 2007, Rep. Boyda told Charlie Gibson, "I think we're going to vote to support what the commander in chief and head of military asks to do. At least, I am certainly going to vote to support it". Mr. Gibson had questioned Rep. Boyda on how she would vote if the president requested a suge of troops in Iraq. Rep. Boyda's stated her rationale behind her answer were as follows, ".… He is the commander in chief, Charlie. We don't get that choice. Congress doesn't make that decision". In my opinion, Rep. Boyda's logic is out of step with her reponsibilities and therefore needs to get a crash course on the US Constitution, do you agree?