Separation of Powers and Troop Build-Up in Iraq

by Roger Alford

The Wall Street Journal has a provocative editorial today about the role of Congress in the war in Iraq. They argue that Congress is acting unconstitutionally in the manner in which it is attempting to micromanage the war effort. Here is a flavor:


To understand why the Founders put war powers in the hands of the Presidency, look no further than the current spectacle in Congress on Iraq. What we are witnessing is a Federalist Papers illustration of criticism and micromanagement without responsibility.

Consider the resolution pushed through the Senate Foreign Relations Committee yesterday by Joe Biden and Chuck Hagel, two men who would love to be President if only they could persuade enough voters to elect them. Both men voted for the Iraq War. But with that war proving to be more difficult than they thought, they now want to put themselves on record as opposing any further attempts to win it.

Their resolution–which passed 12-9–calls for Iraqis to “reach a political settlement” leading to “reconciliation,” as if anyone disagrees with that necessity. But then it declares that the way to accomplish this is to wash American hands of the Iraq effort, proposing that U.S. forces retreat to protect the borders and hunt terrorists. The logic here seems to be that if the Americans leave, Iraqis will miraculously conclude that they have must settle their differences. A kind of reverse field of dreams: If we don’t come, they will build it.

… [A]ll of this is unconstitutional. As Commander-in-Chief, the President has the sole Constitutional authority to manage the war effort. Congress has two explicit war powers: It has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003. It also has the power to appropriate funds.

There is a long and unsettled debate over whether Congress can decide to defund specific military operations once it has created a standing Army. We lean toward those who believe it cannot, but the Founders surely didn’t imagine that Congress could start dictating when and where the 101st Airborne could be deployed once a war is under way.

Mr. Bush was conciliatory and respectful in his State of the Union Address Tuesday night, asking Congress to give his new Iraq strategy a chance. In a better world, the Members would do so. But if they insist on seeking political cover by trying to operate as a committee of 535 Commanders-in-Chief, Mr. Bush will have to start reminding Congress who really has the job.


I think they are onto something really important. Congress has certain war powers–declaring war and funding–but I have serious misgivings about Congress dictating the manner in which the war is waged. The Commander-in-Chief power belongs to the President, not Congress. But what the Wall Street Journal misses is that the essence of the non-binding resolution is, as the New York Times emphasized, that Congress is reluctant to fund a troop build-up. I’m not an expert on the war powers of Congress, so I would welcome others’ input. But the key question appears to be how Congress exercises its funding power without usurping or undermining the role of the President as commander-in-chief. I would particularly welcome comments that de-politicize the question and do not focus on this particular war but rather the constitutional question in general.

http://opiniojuris.org/2007/01/25/separation-of-powers-and-troop-build-up-in-iraq/

13 Responses

  1. I believe that Congress in its funding decisions in past wars went as far as to specify how many mules are to be used where – pretty micromanaged in my view – so I think that this plenary vision of the President as Commander in Chief is severely overwrought.

    I must say that the use of the term “micromanagement” used for great issues of principle and policy like the non-binding resolution is a bit of a stretch.

    In addition to declaration of war, and powers of the purse, the Congress also has the power to impeachment in this arena too but that seems to be left to the side in this discussion.

    President’s will assert usurpation of powers and Congress will assert its prerogatives and the Supreme Court will say its all a political question. Sounds like business as usual between the coequal branches.

    Best,

    Ben

  2. The WSJ seems to have overlooked Congres’s “explicit” power to “make Rules for the Government and Regulation of the land and naval Forces.” I don’t think that this Clause necessarily gives Congress the authority to direct troop movements and the like (“micromanagement,” to use the jargon), but it seems a rather important thing to omit in any discussion of the separation of powers concerning the military. Even putting the Land and Naval Forces Clause to the side, I have a very hard time understanding how any non-binding resolution could possibly constitute impermissible micromanagment or in any way usurp the President’s Commander in Chief power. To paraphrase Auden, such a provision “makes nothing happen”; it may be silly, but why is it unconstitutional?

  3. Also, don’t forget Congress’s Article I power to ” make Rules Concerning Captures on Land and Water,” which is the final phrase of the clause that begins “To declare War, grant Letters of Marque and Reprisal.” This likely contemplated congressional orders concerning the tactical disposition of land and naval forces such as, e.g., “the legion army shall capture Fort X but not Fort Y” or “the navy shall patrol the waters off Cape Hatteras and seize any enemy vessel and interdict any neutral merchantman to search it for contraband of war which shall be condemned as prize in federal district court.”

  4. I think the complexity of this issue is compounded when, as here, the potential use of the spending power to attempt to constrain a troop deployment is connected to a conflict expressly authorized by Congress. There is no indication Congress plans on revoking the AUMF it passed to authorize the conflict in Iraq. It seems to me that if Congress then asserts the spending power to constrain the ability of the President to deploy forces he determines necessary to execute this conflict, it would create the exact type of “Catch-22″ the dissenters in Youngstown noted in support of Truman’s E.O. In such a situation, if the President determines that additional forces are necessary to effectively execute the conflict, could he rely on not only his Commander in Chief power, but also the “Take Care” Clause to support the legality of an order to execute the deployment? My reading of Youngstown suggests that for purposes of a troop deployment, such an argument would have been compelling for more than the just the 3 dissenters.

  5. Assuming Congress refuses to fund the troop surge-this being thoroughly unlikely and pure political suicide-this would place the President squarely into the third category of Jackson’s Youngstown concurrence-the President would be acting against the express will of Congress and at the nadir of his power; especially in light of the additional expression of Congress’ will in the form of the non-binding resolution just passed.

    In such a situation, in order to be able to act in the manner he wishes, the President must demonstrate an express or implied grant of power from the words of the Constitution. The previous post traces this power to the “Commander in Chief” and “Take Care” clauses, and the contemporary Court may very well agree; Congressional authorization for the War clearly has the force of law. So in order to enforce the law as it stands the President may have the implied power to act contrary to the will of Congress under the combined force of these clauses, or even just one.

    However, in my view Congress derives its power from the people, and it is irrelevant whether Congress’ funding cut is politially expedient, cowardly, and/or hypocritical. The point of fact is that the People appear to have lost the will to continue this conflict, and Congress legitimately believes itself under an obligation to express this reversal of the collective will in opposition to the President, in light of the fact that he has already placed an inordinate amount of “gloss” on the Constitution.

    In addition, balancing military powers allocated to the President and Congress in Article II and I respectively, it appears the Founders intended Congress to have the majority of these. Possibly demonstrating their reluctance in placing power beyond that of a six-star General in one individual. Certainly no clear answer, however, as Congress sees the issue-the President has had 4 years to make good and has not done so. I feel the President has the power to deploy the surge as he sees fit, but should not do so contrary to the will of the electorate.

  6. In the event Congress refused to fund the additional troops, I wonder how quickly we could expect some form of clarification from the courts? In matters military, a delay could be costly, or prevent the troops from being deployed even if the President prevailed.

    As for Nonpartisan’s appear to the will of the electorate:



    I feel the President has the power to deploy the surge as he sees fit, but should not do so contrary to the will of the electorate.

    We, through a republican form of government, chose the President to be the Commander in Chief for 4 years. His power therein is not contingent on his current poll numbers. He should certainly heed the opinion of the people, but ultimately, the judgement call is his.

    For true democratic control of the war, the people would require access to all our battlefield knowledge and information. Security makes this impractical, and the limitations of each citizen’s time does as well.

  7. As a preface to what you read below, I am neither a Constitutional scholar nor an academic. I served in the US Army between Feb. 14, 1966, and Feb. 13, 1969, and am therefore more than casually familiar with the exercise of Presidential perogatives in the conduct of military operations.

    Further, I spent 35 years in the railroad business and in my final 12 years, I was responsible for the maintenance of operating policies and practices on a 16,000-mile system in the Western United States.

    Between 1977 and 1979, I took two college-level classes in Constitutional Law while working full-time for the railroad and enjoyed the classes very much. In the final years of my career, I came to draw certain parallels between considerations of the Justices in rendering their decisions and my having to call upon historical experiences of railroad operations to assure the continued safety and efficiency in the conduct of providing transportation.

    In retirement, I am beginning what I hope will be the pursuit of a graduate-level education at The Bush School at Texas A&M and am currently enrolled in a class covering national security law. And it is through this class that my sense of awareness of Constitutional matters brings me to this forum.

    With that being set forth, I would like to focus on something beyond any aspects of Congressional funding for the military venture in Iraq and that is the President’s oath, no different than the one I took upon entrance into military service, to “uphold and defend the Constitution”. In so many words, I doubt the fulfillment of that oath not only by the President but also the Vice President, Secretary of Defense, and Assistant Secretary of Defense in the years 2003 and 2004.

    My doubt is founded upon continuing revisions to the purposes of invading Iraq and as such, initiating what I think was an offensive military action when there was no meritorious reason to do so. Put another and less elegant way, I think the American public was intentionally given false and misleading information to give some perceived manner of legitimacy. My perceptions are reinforced by admissions that there were no weapons of mass destruction nor was Saddam supporting Al Qaida (given the religious affiliations of that group and the orientation of the Baathists).

    To that end, Presidential deceit of such a nature is an inflamatory neutralization of Article I, Section III, pertaining to the election of Senators from each State “by the people thereof”. Here, the people are the ultimate losers in such deceit, not having the benefit of oversight by their elected Senators to validate the allegations of the President.

    Of course, the counter argument can be made that the many Senators remained silent in not pursuing any manner of oversight and therefore allowed the President to continue to exercise his perogatives, however detrimental they might have been, are, and will be to the common weal. And, there is no express obligation to be truthful, that being an implied obligation which has been compromised multiple times throughout the nation’s history.

    Ultimately, I turn to the book “An Introduction to the Philosophy of Law” by Roscoe Pound and published in 1922, to present a view of our Constitution as the basis for the consideration and enactment of laws by our elected representatives ostensibly representing “the people”.

    With specific reference to his talk titled “Function of Legal Philosophy”, I offer the following as my view of the purpose of law, as a concept, and therefore the Constitution:

    “In all stages of what may be described fairly as legal development, philosophy has been a useful servant. But in some it has been a tyrannous servant, and in but form a master. It has been used to break down the authority of outworn tradition, to bend authoritatively imposed rules that admitted of no change to new uses which changed profoundly their practical effect, to bring new elements into the law from without and make new bodies of law from these new materials, to organize and systematize existing legal materials and to fortify established rules and institutions when periods of growth were succeeded by periods of stability and of merely formal reconstruction. Such have been its actual achievements.

    “Yet all the while its professed aim has been much more ambitious. It has sought to give us a complete and final picture of social control. It has sought to lay down a moral and legal political chart for all time. It has had faith that it could find the everlasting, unchangeable legal reality in which we might rest, and could enable us to establish a perfect law by which human relations might be ordered forever WITHOUT UNCERTAINTY and freed from the need of change.”

    Accordingly, I consider concerns about funding and balance of powers to be an exercise in semantics, overlooking the philosophies employed by the founding fathers, the framers, if you will, in writing the Constitution. I believe their goals were to assure the integrity of government for the citizens, those philosophies being founded in strongly-held concepts of moral and ethical discharge of duties by the elected representatives and the President.

    Thusly, do personal philosophies of our President and elected representatives mesh cleanly with the broad tenets of the conduct of our national government as set forth within the context of the Constitution and, specifically, the insurance of domestic tranquility? Does meeting the moral and ethical considerations of the public constitute “insurance of domestic tranquility”?


  8. As Commander-in-Chief, the President has the sole Constitutional authority to manage the war effort. Congress has two explicit war powers: It has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003.

    If Congress possesses the COnstitutional Authority to declare, then wouldn’t they the have the power to “undeclare” war, if so, by what means?

  9. The WSJ editorial makes a subtle but important move. It writes:


    [Congress] has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003. It also has the power to appropriate funds.

    The “essentially” is in fact an enormous issue. While many scholars take a view that a wide war was authorized (or even that the President can essentially start a war by himself, with the power of the purse as Congress’s only check), others argue that Congress only authorized an “imperfect war” in 2002, President Bush went far beyond the authorization, and therefore Congress has every right to get involved. A good example of this position was expressed in an op-ed by Michael Glennon.

  10. The previous post makes a very important point. Namely, if Congress fails to act in this situation, as it has chosen not to act in many previous situations in light of Presidential unilateral assetions of power. That balance of power may inexorably shift in favor of the President (it has shifted quite a bit already), establishing a powerful precedent for future Presidents by the acquiescence of Congress to act likewise, and diminishing the power of the electorate to reign in their government.

    I believe it irrelevant that the President was elected by a republican form of government-I voted for him twice. My point is, right or wrong, the will of the people should control American policy (even without access to perfect information), not the government should control the People. The President does not have a mandate, by virtue of winning the popular vote once, to run a war straight into disaster by means of asinine strategies with the People giving him chance after chance after chance.

    I support the President, and I hope and pray this situation ends well for America and the President. But I guess I am arguing against myself. This particular military tactic disturbs me.

  11. A personal friend directed me to this discussion, which I find most interesting. It raises issues of which I had not previously thought. I admit to prejudices about most of our military conduct since 1945, and I admit to being an outsider to those fields to which this discussion is most relevant. Nonetheless, I have questions and opinions.

    It was not until near the end that the question was posited about the authority of Congress to, essentially, “undeclare” war. Since the declaration of war is within the purview of Congress, can it not be argued that the power vested in the Commander-in-Chief is to execute that war as he sees fit until that time that the Congress no longer considers a state of war to exist?

    To me, this implies that while Congress has every right to assert its feeling through a “non-binding resolution” (an exercise in the futility of semantics, in my opinion, just as it may declare National Groundhog Day), it meets one responsibility with respect to the conduct of war when it determines that a state of war no longer exists. At that point, the C-I-C must perforce withdraw, or be guilty of assuming the mantle of the Imperial President about whom the founding fathers warned the nation.

    Feeding the public and Congress lies about the reason for going to war may or may not be an impeachable offense, but failure to withdraw military force in the absence of a state of war would certainly be so.

    As an historical question (one to which I do not know the answer), I wonder if, at the close of WW2, the Congress determined that a state of war no longer existed. And if not, are we still technically at war with the Axis powers?

  12. There have actually been relatively few formal declarations of war in US history, the last being for WWII. Congress has taken to authorizing the use of force in limited circumstances, rather than actually “declaring war.” Whether or not this is what Congress is supposed to do rather than make an actual (politically risky) declaration of war perhaps called for in the Constitution is debatable but it does leave open the issue of when the Commander in Chief powers actually kick in and how far the President can or cannot go absent a formal declaration of war. This was addressed (but certainly not resolved) in the controversial War Powers Resolution, passed over Nixon’s veto, to limit the President’s ability to commit troops without the approval of Congress. Executive-authority types generally think the resolution is unconstitutional. This link describes some of the debate.

    The ending of wars, and how treaties work in general, are complicated subjects. World War II generally “ended” with the surrender of Germany (in several stages) and the unconditional surrender of Japan, though there also were issues of dealing with Italy, Austria, Hungary, etc. But as far as I know, the formal treaties to end WWII for purposes of US domestic law with respect to Japan and Germany were later – most notably the Treaty of San Francisco which was signed in 1951 and ratified in 1952 (for peace with Japan) and all the way until the Treaty on the Final Settlement With Respect to Germany, signed and later ratified in 1990. It took so long due to the occupations and cold war political issues, especially with respect to Germany and concerns with the Soviet Union. The signing of the Final Settlement was a big external step toward German reunification.

  13. Didn’t the Framers specifically reject the notion of giving Congress the power to declare peace? Debates

    If so, it would seem that the power to declare war does not have the implied power to “undeclare” war and Congress must use other powers if that is its goal.

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