Separation of Powers and Troop Build-Up in Iraq
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.