Editore"s Note
Tilting at Windmills

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January 31, 2007
By: Kevin Drum

WAR POWERS....For what it's worth, lots of people disagree with my belief that Congress has the power to fund and defund war, but doesn't have the operational authority to do things like set troop levels. Examples abound, but check out Fred Barbash here and Mark Kleiman here.

I'm not sure these arguments hold up, but obviously I'm no constitutional scholar and I may be off base. In any case, I suspect that we're all going to become a lot smarter -- or at least pseudo-smarter -- about this in the next few months.

Kevin Drum 1:23 PM Permalink | Trackbacks | Comments (77)

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Comments

You're right on this one, Kevin.

Posted by: Brian on January 31, 2007 at 1:45 PM | PERMALINK

I seem to recall one or more Supreme Court cases about the ability of the administration to conduct war without an explicit declaration of war by the Congress. The legal logic was that by funding the war, Congress had given tacit approval of the war that was equivalent to declaring war.

If my memory is correct, then the corollary would be that Congress would have the right not to fund the war. But then, IANAL.

Posted by: m on January 31, 2007 at 1:51 PM | PERMALINK

Article 1, Section 8 (enumerated powers):
To make Rules for the Government and Regulation of the land and naval Forces;

Wouldn't that be like Congress telling Nixon he couldn't go to Cambodia?

Of course, it would take overriding a veto to get it passed.

Posted by: Adam on January 31, 2007 at 1:54 PM | PERMALINK
I'm not sure these arguments hold up, but obviously I'm no constitutional scholar and I may be off base.

You are way off base. Congress has, expressly, broad, virtually plenary power to regulate the military including how it is employed; the President, on the contrary, has virtually no real Constitutional war powers except the guarantee that the Congress cannot vest the authority to act as supreme commander within the laws Congress provides to govern the military to some other officer; within the laws given by Congress and the parameters of the Constitution, the military answers to the President as its Commander-in-Chief, but only within the parameters of those laws.

The Congress makes the rules by which the military and its actions are governed, and it is empowered to make them as general or as specific as it likes; the President has no power under the Constitution to "color outside the lines" provided by Congress, and indeed has a positive Constitutional obligation to see that the laws are faithfully executed.

Posted by: cmdicely on January 31, 2007 at 1:55 PM | PERMALINK

Hah? The arguments for the liberal view that they can limit Bush's war-making powers are flatly wrong. Bush is Commander in Chief of the United States. It says so in the Consitution. Congress's power over war are restricted to declaring war but making war is a power entrusted to President Bush. The most Congress can do is to say whether or not war is officially declared not whether or not war is being made. That power soley belongs to the Commander in Chief and President.

Posted by: Al on January 31, 2007 at 2:00 PM | PERMALINK

Couldnt Congress use its purse powers to (in the case of Obama's plan) only pay for non-combat troops stationed in Iraq?

Posted by: yep on January 31, 2007 at 2:04 PM | PERMALINK

John Yoo and AG Gonzales went to Yale and Harvard Law, respectively. I think we can trust their opinion on who has what constitutional authority.

Posted by: American Hawk on January 31, 2007 at 2:05 PM | PERMALINK

When we elect the articulate and bright and clean democrat he will make all things clear to us. Perhaps Obama is the chosen one.

Oh come now Obama, come now surrender monkey.
End our occupation and let terrorist free.

Posted by: Orwell on January 31, 2007 at 2:08 PM | PERMALINK

I just posted this on the Obama and the War thread, but hopefully it will be seen by more people scrolling through this thread.

"This has been a fascinating discussion about the powers Congress may or may not have over the armed forces visa-vie the President. Hopefully, to further this discussion, I would like to offer this hypothetical: Following the attack on Pearl Harbor and our entry into WWII, would Congress have the power to require FDR to fight the Japanese first instead of the Germans. After all, it was the Japanese who actually attacked US soil and killed US citizens in Hawaii and the Philippines. If Congress passed a law that only allowed funds to be spent for military operations against the Empire of Japan, would such a law be a proper exercise of whatever war power that Congress may possess?"

Based on cmdicely's comments, I would assume that he would agree that such a law would be within the Congressional war powers.

Posted by: Chicounsel on January 31, 2007 at 2:12 PM | PERMALINK

let terrorists free?

terrorists have never killed so many than under bush..

dead enders...

Posted by: mr. irony on January 31, 2007 at 2:13 PM | PERMALINK

Commander in Chief of the United States.

Wrong. This statement belies your ignorance.

Bush is the Commander in Chief of the United States military. He is not the C-in-C of the civilian population.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 31, 2007 at 2:13 PM | PERMALINK

Bush is the Commander in Chief of the United States military. He is not the C-in-C of the civilian population.
Posted by: Blue Girl, Red State

It calms Al's anxieties to think that there is a C-in-C of all the land-- helps him sleep at night.

Posted by: cyntax on January 31, 2007 at 2:17 PM | PERMALINK

I want Al's anxieties exacerbated until his head explodes.

Posted by: Blue Girl, Red State (aka Global Citizen) on January 31, 2007 at 2:18 PM | PERMALINK

Just a random thought: The power to resolve such a conflict is political and not judicial. That is what popular sovereignty is all about.

If the Congress were to set limits, and Bush ignore them, I suspect that the issue would have to be resolved by the ‘08 elections with the voters of the US rewarding those whom they thought were correct.

I say this because even though some one may sue, the SCOTUS stays away from political wrestling, with one exception.

Impeachment theoretically would be appropriate if POTUS ignored national will, but unless this POTUS really got extreme, I do not see him being removed. It would take 16 GOP Senators willing to say good bye to their party in order for the Senate to pack GWB’s bags.

So we could be stuck with a Congress setting troop and money limits, POTUS waiting as long as possible to ignore them, then ignoring them. This would be followed by 8-10 months of the catfights from hell . POTUS wins short term; but, the Dems win big in the polls in Nov. ‘08.

Posted by: Keith G on January 31, 2007 at 2:20 PM | PERMALINK

Initially that's what Congress did, declare war on Japan and not Germany. Later, when we decided to do in Germany first, you can bet FDR had Congress on board with the policy.

Posted by: Boronx on January 31, 2007 at 2:21 PM | PERMALINK

Speaking of funding and de-funding, here's something I've been curious about:

If the congress were simply turn off the flow of money completely, like turning off a tap at the start of a pipeline, how long before there would be no more money reaching the troops on the ground?

Posted by: TB on January 31, 2007 at 2:21 PM | PERMALINK

The dirtly little truth about Americam governance is that the President can do whatever it wants to, whenever it wants to and can only be stopped by removal, an unlikely scenario in a highly charged partisan atmosphere. Of course, the President can be charged with crimes after (s)he leaves office, and that may well be the answer, but by then, the damage is done. As to the WPA, since Congress has the power to declare war, it stands to reason that they can enact legislation on how to pursue it. After all, Geneva treaties and other pacts impose restrictions on our warfare abilities.

Posted by: raoul on January 31, 2007 at 2:21 PM | PERMALINK

When is Nightline going to start "America's Army Held Hostage, Day 1128"?

Posted by: Boronx on January 31, 2007 at 2:24 PM | PERMALINK


KEVIN DRUM: Examples abound, but check out Fred Barbash here and Mark Kleiman here.
I'm not sure these arguments hold up, but obviously I'm no constitutional scholar and I may be off base.

Then why not link to actual experts rather than professors of journalism and policy studies?


Posted by: jayarbee on January 31, 2007 at 2:25 PM | PERMALINK

Kevin:

This is pretty clear cut. I know all Dems WANT the Constitution to allow it but the plan text of the Constitution and Federalist 74 seem decisive to me.

Posted by: Big Tent Democrat on January 31, 2007 at 2:25 PM | PERMALINK
Based on cmdicely's comments, I would assume that he would agree that such a law would be within the Congressional war powers.

Sure, it would be within Congress' Constitutional war powers; it would also have been bad policy. You seem to be pulling the all-too-common trick of proposing something that most people would acknowledge would have been bad policy, and using that as a basis to reject that something arguably legally analogous (regardless of whether the policy considerations are similar) must therefore be outside of the Constitutional power of Congress; particularly helpful in this rhetorical trick is the equivocation with the use of "proper" so that an endorsement of the legality of the action can be made to seem as an endorsement of the desirability.

But, ff course, the Congress is Constitutionally empowered to do lots of things that, if it chose to exercise its power with poor judgement, would be bad policy. I covered this, I thought, pretty well in the Obama thread when I wrote this:

Congress can manage specific operational aspects of a war if it desires. There is no limit on the specificity with which it may exercise the Article I, Section 8 power "To make rules for the government and regulation of the land and naval forces"—if Congress chooses to make law that "The military forces of the United States shall not, after May 31, 2007 and without subsequent specific authorization by statute, be employed in combat operations within the internationally-recognized territorial boundaries of the Republic of Iraq", then that is the law, and the Executive is bound by it (of course, Congress can only make it law if it can either secure executive assent or override a veto, neither of which is likely in the present circumstance.)

Now, one may argue that beyond a certain point Congress should not micromanage war, and that the right remedy for a President who dangerously lacks the judgement necessary to properly run a war and who has, as a result, continud to endanger the country through his negligent or reckless conduct of military affairs is impeachment and removal, not microlegislating the conduct of war. And that is probably correct. But it certainly is not the case that Congress lacks the power to legislate as specifically as it wants as to the employment of the US military.

Posted by: cmdicely on January 31, 2007 at 2:31 PM | PERMALINK

Pelosi ought to give Bush a choice he can easily understand:

Day 1:
Mr President you can have one or the other, but not both: Extension of the tax cuts for the wealthy or the Iraq Occupation. What will it be?

Day 2:
"President Bush Announces immediately withdrawl of all forces from Iraq"

Posted by: Robert on January 31, 2007 at 2:32 PM | PERMALINK
I say this because even though some one may sue, the SCOTUS stays away from political wrestling, with one exception.

The Supreme Court would only, likely, find standing to challenge the issue if Congress, by a majority vote of both houses, raised the challenge as a body, and if the political will existed to do that, it would probably exist for the House to propose articles of impeachment, letting the matter be resolved, if less permanently, wholly within the legislative branch.


Impeachment theoretically would be appropriate if POTUS ignored national will, but unless this POTUS really got extreme, I do not see him being removed. It would take 16 GOP Senators willing to say good bye to their party in order for the Senate to pack GWB’s bags.

No, it wouldn't; it would take 16 GOP Senators willing to remove a President of their own party, but that doesn't mean willing to say good-bye to their party, if there is a strong, broad public sentiment that extends into the Republican Party.

Sure, it would take more public outrage than has happened yet, but even now the Republican Party in the electorate is less than wholly behind Bush, and if Bush defied a popular move by Congress to constrain the war, that might well become far more notable.

But, certainly, the political is more important than the judicial, here, in practice. On that much we agree, quibbling on details aside.

Posted by: cmdicely on January 31, 2007 at 2:38 PM | PERMALINK

I read Kleiman and frankly, there is not even an argument there to disagree with. "Clearly" is hard to refute.

I refer Mr. Kleiman to Federalist 74.

Posted by: Big Tent Democrat on January 31, 2007 at 2:38 PM | PERMALINK
I refer Mr. Kleiman to Federalist 74.

Federalist 74 says very little at all on the issue of where the line between the rule-making authority of Congress and the command authority of the executive lies, only saying:

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.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. 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.

Pretending that this somehow settles the issue in favor of an inherent, unconstrainable power of the President to pursue war of his own choice in whatever manner he prefers in the face of Congressional mandate to stop or to regulate the manner in which war may be pursued is, I would say, absurd.

Posted by: cmdicely on January 31, 2007 at 2:42 PM | PERMALINK

Before Bush I was perfectly happy not needing to know about the War Powers of Congress and the President.

I am getting real tired of having to care about Iraq too. Bush as president is getting very very tiresome.

Posted by: Tripp on January 31, 2007 at 2:46 PM | PERMALINK

There are some posts on lawyer blogs -which I cannot find right now, but will look for. Apparently, the first case of a Congressional law controlling rules of engagement in military operations in a foreign confict was upheld by the federal courts in freaking 1798! It in was the undeclared war with France. I will look for the link and post in comments for send via e-mail. Since the founders were still running the show at that time, I think this is excellent evidence that Mr Drum is completely wrong on this point.

Posted by: commentor on January 31, 2007 at 2:47 PM | PERMALINK

So Congress gets to declare war and then go home. Or when it's tired of it cut off the money. That's all, huh. That really doesn't sound like the basis for functional government in wartime.

Posted by: sniflheim on January 31, 2007 at 2:48 PM | PERMALINK

John Yoo and AG Gonzales went to Yale and Harvard Law, respectively.

Those would be the very same Yale and Harvard that are routinely mocked by your side as 'Elitist Eastern Institutions' - especially if referring to them as such can be used to ridicule a Democrat like, say, John Kerry.

Right?

So why are you listening to Eastern Elitists like Yoo and Gonzalez?

Posted by: Stranger on January 31, 2007 at 2:49 PM | PERMALINK

Marty Lederman has been giving his own case (that they do) over at balkin's blog for awhile now. I'm certainly not really equipped to be making cases for or against.

It's certainly an interesting argument, but I'm not sure how much it matters in practical terms. The constitution isn't a magical document whereby bells go off if you get the interpretation right. Congress will try to stop the war (through various mechanisms) and the President will assert that they can't, and whichever side prevails will probably have as much to do with public support and political maneuvering as it will SCOTUS rulings.

Posted by: Royko on January 31, 2007 at 2:54 PM | PERMALINK

cmdicely writes:

"Pretending that this somehow settles the issue in favor of an inherent, unconstrainable power of the President to pursue war of his own choice in whatever manner he prefers in the face of Congressional mandate to stop or to regulate the manner in which war may be pursued is, I would say, absurd."

And so would I. Which is why no one sane would say such a thing. That is not what is being said -you have created a straw man.

The argument is, and Federalist 74, wholly supports it, that ONCE the Congress authroizes military action, the President's Commander in Chief powers are activated and he is solely in command of the conduct of that military action.

IF the Congress want to END the military action, it can UNauthorize military action, thus ending the President's Commander in Chief powers for the authorized conflict OR, much more practical in this case, simply STOP funding the war, or stop funding those parts of the war it chooses not to fund.

What the Congess CANNOT do is tell the President HOW to conduct the war, i.e., how many troops to use, what battles to fight, etc.

The best argument you have is in fact the power of the purse - to wit, the Congress, would go the argument, could condition funding on the President's abiding by the conditions imposed by the Congress - i.e. - troop levels. I believe that type of restriction would be unconstitutional, for the Congress can not use its power to do that which it is forbidden to do.

Fred Barbash's argument also swats at straw men:

"Now, people who know better show no surprise at the notion that Congress's only war-related authority is the power of the purse. Timid requests for legislative involvement are ridiculed and caricatured as "micromanagement" or, worse, as comforting the enemy."

The power of the purse is the most awesome of powers. Without the funds, Bush cannot fight his war. Why ridicule this power?

He continues:

"It's as if there is nothing left to argue about -- except, of course, there is, though it seems so elementary.

Article II does indeed make the president commander in chief.

But Article I gives Congress not merely the power of the purse. It vests in the House and Senate the authority to "declare war," to "make rules concerning captures on land and water," to "provide for the common defense," to "raise and support Armies," and to "make rules for the government and regulation of the land and naval forces.""

Indeed it does. In what way do these powers conflict with the President's power as Commander in Chief in wartime? They don't.

Barbash continues:

"In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq."

But this is due to the Congress' power to "make rules for the government and regulation of the land and naval forces, not due to its power to manage the war itself. Suppose Franks had never resigned, could Congress have demanded his ouster? Of course not. It would be, tocoin a phrase, absurd to say so.

Barbash continues:

"War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to "make war."

The delegates changed the wording to "declare war," not to remove Congress from the process but to leave the commander in chief the "power to repel sudden attacks," as James Madison put it."

Well, as Federalist 74 demonstrates, the text and Hamilton make clear that the power of Congress are those expressly granted in Article I.

In short, when the REAL argument is addressed, we see that those that argue that Congress can in fact engage in the CONDUCT of the war are bereft of any textual of historical support.

This is why, like the commenter here and Barbash do, they are forced to create strawmen to defeat. They can not defeat the actual argument.

Posted by: Big Tent Democrat on January 31, 2007 at 3:00 PM | PERMALINK

Yes, Your off base. Try this one Kevin.

Congress can disband the entire military if it wants too; Bush would be Command-In-Chief of... nothing.

Which isn't a bad idea.

Congress is far more powerful than most people think. It really is more powerful than the other two branches of government.

Also, A lot of people think the Supreme Court has the last word on the law...it's doesn't. Congress "allows" the Supreme Court to have the last word. All Congress has to do is make a new law that corrects the defects that the Supreme Court points out that makes a law unconstitutional.

The three branches of government work like a pendulum; a "law" swinging back and forth between those three branches of government.

Posted by: James on January 31, 2007 at 3:04 PM | PERMALINK


SNIFLHEIM: So Congress gets to declare war and then go home. Or when it's tired of it cut off the money.

You say that like it's a bad thing. Congress answers to the will of the people (in theory, at least). The people are "tired of" this war.

P.S. Has it become a common occurrence in these parts to receive the message, "Your comment has been received and held for approval by the blog owner," only to notice 15 minutes later that one's comment has been posted and timestamped as if it had never been held for review? What about my previous comment would make it a candidate for such close scrutiny?


Posted by: jayarbee on January 31, 2007 at 3:11 PM | PERMALINK

James:

There is much that is wrong in your post. First, I feel certain that, if kevin agrees with me, as he has stated, that he does not question for onew moment that Congress can disband the military in its entirety. More to the point, it can defund the war entirely.

Having that power does not mean that it can conduct the war it authorizes. Which is what the debate is about.

As for the Congress overruling the Supreme Court on Constitutional decisions, that simply is wrong and has been since Marbury v. Madison.

Posted by: Big Tent Democrat on January 31, 2007 at 3:12 PM | PERMALINK
The argument is, and Federalist 74, wholly supports it, that ONCE the Congress authroizes military action, the President's Commander in Chief powers are activated and he is solely in command of the conduct of that military action.

Federalist 74 does nothing to support such an argument. Neither the text of the Constitution, nor Federalist 74, support the idea that the President has "Commander-in-Chief powers" that are "activated" by Congressional authorization of war.

The President's Commander-in-Chief role, which exists (expressly in the text of the Constitution) over the military of the United States at all times, and over such of the militia that are called into federal service while they are so called, is constant, not activated by authorization for war. And it extends solely to having supreme power to execute Congress' laws governing the military, and not one micron beyond them.

IF the Congress want to END the military action, it can UNauthorize military action, thus ending the President's Commander in Chief powers for the authorized conflict OR, much more practical in this case, simply STOP funding the war, or stop funding those parts of the war it chooses not to fund.

Well, except for the mistaken and nonsensical reference to "the President's Commmander in Chief [sic] functions for the authorized conflict" (the function of Commander-in-Chief does not, again, exist in regard to a specific conflict, but in relation to the US military and such of its militia as are called into federal service), this is true: Congress may defund or entirely deauthorize a war ongoing.

What the Congess CANNOT do is tell the President HOW to conduct the war, i.e., how many troops to use, what battles to fight, etc.

Certainly it can do just that, contrary to your claim. Article I, Section 8 expressly gives to Congress the power to establish rules governing the military, including how they may fight. This is quite clear, and is cited as a distinction between the President's powers and those of the British monarch in Federalist 69. The Supreme Court has held that the President is restricted to Congressionally-imposed limits on means even in an otherwise Congressionally-authorized conflict as far back as the Quasi-War with France; see, among others, Little v. Bareme, 2 Cranch 170 (1804).

The best argument you have is in fact the power of the purse - to wit, the Congress, would go the argument, could condition funding on the President's abiding by the conditions imposed by the Congress - i.e. - troop levels. I believe that type of restriction would be unconstitutional, for the Congress can not use its power to do that which it is forbidden to do.

No, the best argument is the express Constitutional power to regulate the military, including such of the militia that are called into active service. If Congress makes it illegal for the military to wage war in Iraq, or to wage war by certain means or methods, then it shall be illegal, and it will be illegal for the President to order them to do so. The Commander-in-Chief role simply and solely guarantees that the President, and not some officer, will have ultimate command under the laws and authority prescribed by Congress, not that he is, once and while at war, above the laws and authority of Congress.

The President is not a King, nor even a temporary King once authorized to go to war.

Posted by: cmdicely on January 31, 2007 at 3:16 PM | PERMALINK

To Article I's Congression power to "make rules concerning captures on land and water" and to "make rules for the government and regulation of the land and naval forces," Big Tent Democrat says: "In what way do these powers conflict with the President's power as Commander in Chief in wartime? They don't."

First, you seem to be assuming that Congress' power to make rules for regulating land and naval forces CAN NOT apply during an authorized war. But that is not at all clear from the text. For example, "caputures" of the enemy would usually only occur during a war. And one might think that Congress could "regulate" land forces by banning the use of chemical weapons in war. In each case, one might think the Article I authorized rules would bind the Commander in Chief. Certainly, that power seems to be assumed by various treaties we have signed.

Second, why on earth assume that the Constitution even provides an answer to this question? In many places, the framers adopted intentionally vague and open-ended language that allowed them to agree enough to enact a constitution without agreeing as to every question that would come up under it. I don't see why anyone thinks there is one obviously right way to interpret the line between the "Commander in chief" power and the Congressional power to "make rules for the ... regulation of land and naval forces."

Third, this legal talk seems beside the point unless we think the SCOTUS would ever take a case. I don't think so. I think they would declare it a "political question" and abstain. And it is political. So the question really boils down to what Joe and Jane Citizen thinks, not what (the great) Alexander Hamilton thought.

--RiMac

Posted by: RiMac on January 31, 2007 at 3:22 PM | PERMALINK

My what an absurd argument from cmdicely.

He writes:

"The President's Commander-in-Chief role, which exists (expressly in the text of the Constitution) over the military of the United States at all times, and over such of the militia that are called into federal service while they are so called, is constant, not activated by authorization for war. And it extends solely to having supreme power to execute Congress' laws governing the military, and not one micron beyond them."

Indeed, but the Commander in Chief power DURING WARTIME is DIFFERENT. Why? It is patently obvious and how it escapes you is beyond me, it is the ACTUAL POWER TO WAGE WAR that exists during wartime.

To act as if the President's role and POWER is Commander in Chief in peacetime is the same as in wartime is to defy the very purpose of having a military - which is, you guessed it, to WAGE WAR!!

The power to WAGE WAR can only be granted by the Congress, excepting repelling attacks. It is why Hamilton in Federalist 74 so stresses THIS DIFFERENCE with the monarch.

To say the President is not a King during wartime is of course correct but irrelevant - a President is LIKE a King in his control of the military (and JUST THE MILITARY), subject to the general rulemaking power of the Congress and of course, the Congress power to UNauthorize the military action or NOT fund it.

For you to pretend that the Commander in Chief power is NOT different during wartime is blindingly obtuse.

I refer you, for ready reference, to Justice Jackson's concurrence in the Steel Seizure cases if you still do not understand this.

Posted by: Big Tent Democrat on January 31, 2007 at 3:27 PM | PERMALINK

Rimac says:

"First, you seem to be assuming that Congress' power to make rules for regulating land and naval forces CAN NOT apply during an authorized war."

I assume no such thing. Why would you think I do. For example, it is clear that the Uniform Code of Military Justice appalies. It is clear that the Geneva Conventions apply. It is clear that all applicable laws apply. This is irrelevant to the discussion imo.

rimac continues:

"Second, why on earth assume that the Constitution even provides an answer to this question?"

I do not assume it does, I glean the answers from the text of the Constitution and from the Federalist Papers.

Posted by: Big Tent Democrat on January 31, 2007 at 3:31 PM | PERMALINK

One last point for cmdicely:

When the Constitution was enacted, the idea of a standing army was deemed preposterous by the Founders.

The concept of Commander in Chief very much contemplated WARTIME powers.

Posted by: Big Tent Democrat on January 31, 2007 at 3:36 PM | PERMALINK

I'm certainly not really equipped to be making cases for or against.

Oh come on.

This is not quantum physics or tensor calculus.

The basis of any opinion on this matter is the US Constitution. It makes up about 20 seconds of reading, the relevant parts. Those passages are not so ambiguous as to require one to wade into lots of case law to see how the ambiguity was decided by the courts.

To Recap:
The Congress makes the laws. The Congress raises and governs the army. The President enforces (and follows) the laws made by Cogress. The President is Commander in Chief of said army.

It's that simple. A body that has both the power to make binding law and the power to govern the army is very clearly within its right to tell Bush how to run the war, at any level it wishes.

Posted by: teece on January 31, 2007 at 3:45 PM | PERMALINK

We might want to ask what war are we fighting?

We fought a war against Iraq and won. The government surrendered and was eventually replaced with a new government. Who exactly are we at war with?

Afghanistan is similar.

Both, of course have the problem that Bush completely bolloxed up the occupation, but just as during the occupation of those States that had engaged in Rebellion, the power of the President was greatly reduced after the war was over.

Bush has no excuses.

Posted by: freelunch on January 31, 2007 at 3:49 PM | PERMALINK

On the other hand, what if some of the Republicans were willing to get behind the Obama plan if it didn't forbid a surge? Then Obama could graciously compromise, scoring media points for bipartisanship, putting the President in an impossible position politically, and quite possibly getting us out of Iraq on the least disastrous terms available from where we are.

Especially since they just confirmed the commander of American forces in Iraq who spoke in favor of the surge. Opposing the surge is less important than bringing the soldiers home on schedule -- isn't it?

Posted by: MatthewRMarler on January 31, 2007 at 4:04 PM | PERMALINK

from the link provided by jayarbee: A subcommittee chairman who ran the hearing, Sen. Russ Feingold, said he would introduce a bill prohibiting the use of funds for the war six months after enactment.

Even Feingold is not in favor of immediate withdrawal. The flaw there is that the president could keep the soldiers in Iraq without funding, or pay for operations in advance. Note also the timing: if the bill passes in a couple months, the cutoff corresponds roughly to the start of FY07, so it isn't that different from Obama's bill.

Posted by: MatthewRMarler on January 31, 2007 at 4:09 PM | PERMALINK

Big Tent Democrat:

I made my comments with this statement of yours in mind: "What the Congress CANNOT do is tell the President HOW to conduct the war, i.e., how many troops to use, what battles to fight, etc." Given your last email, the part of this sentence that comes before the "i.e.," is false. If you concede that the Congress can tell the President how his armed forces shall treat "captures" and can forbid his armed forces from using chemical weapons, then Congress is now literally telling the President HOW to conduct a war.

So your point is to draw some line between these things that Congress can do and the things you mention after your "i.e.": how many troops and what battles to fight. I think it is hard to say exactly what that line is. Perhaps it is the difference between general rules -- don't shoot POW's; don't use poison gas -- and rules that micro-manage a particular battle -- attack at dawn from the north. I agree with you that the latter sort of interference would be dreadful (and might be unconstitutional). But it isn't obvious to me why ending a war is micro-managing. A rule that says: "You have 6 months to bring our troop level down to specified levels" that are so low as to effectively end our participation in th war falls between a "never use poison gas" rule and a "attack at dawn from the north" rule. I think a troop withdrawal mandate leaves enough of the operational details to the President that it is on the side of the line defined by Congress' power to "make rules" for regulating the armed forces.

--RiMac


Posted by: RiMac on January 31, 2007 at 4:13 PM | PERMALINK

Big Tent Democrat: Suppose Franks had never resigned, could Congress have demanded his ouster? Of course not.

In WWII Congress came close to demanding the ouster of General Patton. They were persuaded not to, but I do not think there is any doubt that they could have done so had they been united and persistent in their demand.

Congress has two ultimate powers: it can withhold money; it can impeach the president if he ignores their expressed commands (which I am sure they would do with public opinion strongly against the president's policy). I think you have lost this argument to cmdicely and the others who have quoted the sections of the Constitution authorizing Congressional power over the military.

Congress can also refuse to promote officers who act contrary to Congressional instruction.

Posted by: MatthewRMarler on January 31, 2007 at 4:27 PM | PERMALINK
Indeed, but the Commander in Chief power DURING WARTIME is DIFFERENT.

The Commander-in-Chief designation is a role or duty; it is nothing more or less than the fact of sitting at the apex of the power structure implementing whatever authority Congress deems to create over the military within it Constitutional power. It is not an independent power or source of additional authority or independence from regulation except insofar as no other officer may be substituted by Congress for the President in executing the rules it provides for the military.

Why? It is patently obvious and how it escapes you is beyond me, it is the ACTUAL POWER TO WAGE WAR that exists during wartime.

Yes, the President is only authorized to wage war when, and to the extent, he is authorized to do so by Congress.

To act as if the President's role and POWER is Commander in Chief in peacetime is the same as in wartime is to defy the very purpose of having a military - which is, you guessed it, to WAGE WAR!!

It is the same in that it is constrained absolutely by the Congress' power to govern the military. It, of course, differs in what Congress has authorized be done with the military, but the authority to wage war, even during wartime, is not unconditional, but remains subject to regulation by Congress as to methods and manners, as has been recognized from the earliest days of the Republic.

The power to WAGE WAR can only be granted by the Congress, excepting repelling attacks.

Actually, including repelling attacks, though in this regard the grant of power by Congress tends to be fairly broad and general, rather than specific.

To say the President is not a King during wartime is of course correct but irrelevant - a President is LIKE a King in his control of the military (and JUST THE MILITARY), subject to the general rulemaking power of the Congress and of course, the Congress power to UNauthorize the military action or NOT fund it.

He is "like a King" only in that he is the paramount officer of the military. He is unlike a King with respect to the military because the "rulemaking power of the Congress" is by no means general, but instead virtually plenary (saving the few Constitutional restrictions, such as that the President must remain the paramount officer executing the rules prescribed over the military), and not at all limited, in its applicability to the conduct of war, only to defunding or completely deauthorizing the war. Congress can issue limited or conditional authorizations of war, and likewise limited or conditional deauthorizations of war.

For you to pretend that the Commander in Chief power is NOT different during wartime is blindingly obtuse.

The Commander-in-Chief power does not exist; the Commander-in-Chief role, of course, is "different" whenever there is any change in the Congressional rules governing the military, including, but not limited to, a change in whether, against whom, and by what means war is authorized.

The nature, however, of that difference is not as you characterize it, specifically, it does not void Congress regulatory power, which includes directing how war may or may not be conducted.

I refer you, for ready reference, to Justice Jackson's concurrence in the Steel Seizure cases if you still do not understand this.

Since that concurrence is completely compatible with the idea that the President, even in the conduct of war, remains subject to Congressional control as to the means and conditions, and thus in no way buttresses your case (just as your citation to the Federalist Papers does not), I don't understand why you invoke it. Indeed, Justice Jackson writes, "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."

Posted by: cmdicely on January 31, 2007 at 4:33 PM | PERMALINK

Al: "The most Congress can do is to say whether or not war is officially declared not whether or not war is being made. That power soley belongs to the Commander in Chief and President."

Wrong, wrong, wrong again, Al.

Now, 'fess up -- when your 8th grade civics class was in session, you were smoking weed in the boy's room, weren't you?

Well, anyway, here's what you missed:

* The legislative branch, as personified by the members of Congress, is the sole branch of the federal government empowered by the United States Constitution to enact public policy.

* The executive branch, as personified by the president and members of the administration, is solely empowered by that same document to administer such public policy as set forth by the aforementioned members of Congress.

* The judicial branch, as personified by the U.S. Supreme Court and the various federal circuits, is solely empowered to administer the court system and resolve legal conflicts; and

* The Supreme Court in the 1804 case Marbury v. Madison reserved for the federal judiciary the sole right to interpret the U.S. Constitution, and further determined that all federal, state and local statutes must comply with that document's provisions herein.

Congressional inaction on a given issue -- though it might imply that Congress has perhaps abrogated its civic obligations to oversee and protect the public welfare -- does not entail the forfeiture of Congress' constitutional right to enact policy on that particular issue in the future, if it collectively desires.

If Congress chooses to statutorily define a set of rules to limit current or future military operations, the president is constitutionally obligated to administer the expressed collective will of Congress with regards to his or her conduct of those operations as Commander-in-Chief. (See War Powers Act, 1974).

The president has every right to advise that body during its policy deliberations, but no administration has the constitutional authority to freely ignore or pointedly defy congressional mandates as it might see fit.

Therefore, the fact that such limits may or may not be considered inappropriate by the president -- or, in your case, an ignorant and noisy, but thankfully waning, segment of the general public -- is really beside the point.

Posted by: Donald from Hawaii on January 31, 2007 at 4:34 PM | PERMALINK

Glenn Greenwald points out that Republicans once had a different opinion on this subject, when Bill Clinton was in office, of course.

Posted by: thump on January 31, 2007 at 4:34 PM | PERMALINK

On Patton, Congress can demand many things, but it can not do them just because it can demand them.

On Patton:

"General Eisenhower must surely have felt the warmth and confidence of Marshall's regard for him, perhaps best shown in a small incident in 1943. Eisenhower had wrestled for weeks over the problem of whether to relieve General George Patton of command because of the well-known slapping incident in Sicily. Patton had accused two soldiers of cowardice on the battlefield when he met them in a medical tent. Eisenhower had to weigh this issue against Patton's great skill and reputation as the country's greatest combat commander. Marshall wrote him an extraordinary letter saying, "if it is your decision that General Patton be relieved from duty, allow me to do that. You have far more difficult and searching duties and decisions before you to be further troubled by the outcry that would follow such a decision. Let me do it." "

Why would Marshall not let Congress do it?

Posted by: Big Tent Democrat on January 31, 2007 at 4:39 PM | PERMALINK

On the domestic front . . .

House Republicans complained bitterly Wednesday that they had been shut out of the secretive process in which Democrats assembled a huge spending bill to sweep clear a budgetary mess they inherited.

As the House kicked off debate on the bill, Republicans said the measure was being rushed to the floor without adequate time for lawmakers to read it and without the chance to offer changes.

"I cannot recall in the entire time I've been a member of the House a single appropriations bill that has not been open to amendment at some level," said Rep. James Walsh, R-New York, a 10-term veteran. "Frankly, I think that's a travesty."

This from the party that allowed their leadership to present, to the president for signing and enactment into law, legislation that was not in fact passed by Congress.

This from the party that routinely shut the minority party out of even the most trivial participation.

This from the party that conspired with Shrub to hide the truth about WMDs and a host of other war-related issues, helped to cover up abuse authorized by White House officials, and aided and abetted our enemies by giving them exactly what they wanted in Iraq while ignoring security here at home.

To all of which I say . . .

"F*ck you."

"You lost."

"Win some elections and then you can have a voice."

Sound familiar, wingnuts?

It should.

It's exactly what you said to the Democrats when the GOP controlled Congress.

Ha, ha, ha, ha, ha!

Take that shoe that's on the other foot and stick it in your mouth.

Posted by: Google_This on January 31, 2007 at 4:49 PM | PERMALINK

cmdicely is refused to sophistry now. To state as he does, that Jackosn's concurrence is in accord with is statements is simply ridiculous:

The clause on which the Government next relies is that "The President shall be Commander in Chief of the Army and Navy of the United States. . . ." These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by nonassertion, yet cannot say where it begins or ends. It undoubtedly puts the Nation's armed forces under presidential command. Hence, this loose appellation is sometimes advanced as support for any presidential action, internal or external, involving use of force, the [p642] idea being that it vests power to do anything, anywhere, that can be done with an army or navy.

That seems to be the logic of an argument tendered at our bar -- that the President having, on his own responsibility, sent American troops abroad derives from that act "affirmative power" to seize the means of producing a supply of steel for them. To quote,

Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President's constitutional powers.

Thus, it is said, he has invested himself with "war powers." I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may, in fact, exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. [n10] [p643] I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power "to raise and support Armies" and "to provide and maintain a Navy." (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation, and may determine in what manner and by what means they shall be spent for military and naval procurement.

There are indications that the Constitution did not contemplate that the title Commander in Chief of the [p644] Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions.

That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.

Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was expressly left to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. . . ." [n11] Such a limitation on the command power, written at a time when the militia, rather than a standing army, was contemplated as the military weapon of the Republic, underscores the Constitution's policy that Congress, not the Executive, should control utilization of the war power as an instrument of domestic policy.

Congress, fulfilling that function, has authorized the President to use the army to enforce certain civil rights. [n12] On the other hand, Congress has forbidden him to use the army for the purpose [p645] of executing general laws except when expressly authorized by the Constitution or by Act of Congress. [n13]

While broad claims under this rubric often have been made, advice to the President in specific matters usually has carried overtones that powers, even under this head, are measured by the command functions usual to the topmost officer of the army and navy. Even then, heed has been taken of any efforts of Congress to negative his authority. [n14]

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. . . . 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.

Jackosn is clear in his deference to the C-i-C in his war conduct power overseas.

To act as if this is support for you is simply disingenuous. If you choose to believe what you wish despite the clear evidence, then there is nothing to be done.

Posted by: Big Tent Democrat on January 31, 2007 at 4:52 PM | PERMALINK

Big Tent Democrat: Why would Marshall not let Congress do it?

Because Congress hadn't decided to do it.

Furthermore, if Congress had clearly wished to do it, it might have made political sense for Marshall (and FDR) to acceed to their known wishes, rather than forcing Congress to force the issue. This also gave him greater and clearer flexibility to reinstate Patton later in the war (as was, of course, done).

Posted by: alex on January 31, 2007 at 4:52 PM | PERMALINK

cmdicely: You are on point re Congress. For example, Congress sets the manpower strengths for the armed forces; officers receive a commission assigning them to the Officer Corps from the President (with the consent of the Senate). The congress approves pay, JCS appointments, unified combatant appointments and the like.

Al is an ass. I don't remember swearing allegiance to the president, or in the case of Bush, sovreign, or in the Wermacht, Hitler, but to the United States of America.

Congress declares war, though it has largely abdicated its authority to do so, and funds the military. He who pays the piper, calls the tune.

Does Al have a degree from the Alberto Gonzalez School of Law and misrepresentation? The Constitution is crystal clear on which branch has primacy. If Bush wants to fight a war that Congress won't pay for what's he going to do? I don't care how stacked the Supreme Court (which hasn't any enforcement power, in terms of police/military) is--no deal.

Posted by: Allen on January 31, 2007 at 4:56 PM | PERMALINK

I know we covered this before, but I can't remember it,

Can the President give himself a pardon?

Posted by: cld on January 31, 2007 at 5:05 PM | PERMALINK

Power is what you make it --- what you convince people of. Presidents today have far more than the constitutional powers they were considered to have in the 19th century.

Clark counsels trying to negotiate with this president so that he can save face and so that we can save lives. In a January 11 interview on Air America he said:

"Look, we got to lift our heads up. Bush is trying to rearrange the deck chairs as the titanic sails toward an iceberg, and I don't want to see good people arguing about whether there should be more deck chairs in the front of the deck or the back of the deck.

That's not the appropriate question. The appropriate question is: How can we get the Captain to change course before he hits the iceberg, and his request for troops gives the Congress the chance to say, 'Mr. President, you know, we're not sure that this makes a whole lot of sense, but for it to make any sense, you need a better strategy. So, you'll come back with a change in strategy, and we'll look more favorably at your troops ideas.'"

Because boosting troops is actually not the most important thing going on right now. It's distracting us from the fact that we're about to make war on Iran without ever engaging with Iran diplomatically. It's distracting us from our own withdrawal from Iraq after diplomatic negotiations with Iraq's neighbors.

So if Democrats want to posture against the president and vociferously declaim against a few deck chairs rearranged --- well, even if we triumph on this matter, we may all have lost.

Posted by: catherineD on January 31, 2007 at 5:21 PM | PERMALINK

Big Tent Democrat:

Focus on this part of Jackson's opinion that you quote: "It is also empowered to make rules for the 'Government and Regulation of land and naval Forces,' by which it may, TO SOME UNKNOWN EXTENT, IMPINGE UPON EVEN COMMAND FUNCTIONS."

That's the point I've been making! There is no clear line here. Congress can tell the President he may not use poison gas on the battlefield or how his forces must treat the enemy soldiers it captures. Those are "command functions," but the phrase "Commander in Chief" does not invalidate those Congressional "rules for the ... regulation of land and naval forces" even during war. While I concede that Congress can't dictate precise battle movements, it is not clear that Congress' power of "regulation" does not include the power to compel withdrawal, at least where operational details are left to the President.

--RiMac

Posted by: RiMac on January 31, 2007 at 5:26 PM | PERMALINK

At first blush, I would agree with Kevin on this, but not entirely. I wouldn't imagine that Congress should be setting maximum troops levels and what not, but would behind the scenes be pushing for their priorities as a condition of funding and authorizing the effort.

Posted by: Jimm on January 31, 2007 at 5:40 PM | PERMALINK

Here's a link to the US declaration of war on germany in ww2:
http://www.law.ou.edu/ushistory/germwar.shtml

Posted by: jefff on January 31, 2007 at 5:59 PM | PERMALINK

And the japan one, from 3 days earlier (in between germany declared war on the US)
http://www.law.ou.edu/ushistory/japwar.shtml

Posted by: jefff on January 31, 2007 at 6:00 PM | PERMALINK

1. Boronx ---- Germany declared war on the US.

2. Ahem --- I think it is the case that Congress merely approved the invasion of Iraq, that it did not "Declare War". Thus the US is not At War with any nation. Surely, therfore, Congress can just vote not to approve of the action in Iraq any longer, starting with cutting off the money...... (perhaps GW could tell Halliburton and its pals to pay for the next phase with all the bread they have been paid since 2003). Do not be confused, Al et Al about "The War on Terror" which is yet another example of Bush WH illiteracy. The W on T is like saying The War Against the Tank, and thus ridiculous.

3. BTW, a question on a different subject ---- does anyone have an idea why the press, and all of us too, for that matter, are not ramming down Bushy's throat that a 15% increase in the present troop level, and still not up to the level of the initial invading force, is not a SURGE, but a feeble dribble, thus its failure is already certain.

Posted by: maunga on January 31, 2007 at 6:07 PM | PERMALINK

BigTentDemocrat, quoting Jackson: Congress alone controls the raising of revenues and their appropriation, and may determine in what manner and by what means they shall be spent for military and naval procurement.

Congress can, on this, determine that the remainder of the FY2007 budget for Iraq be spent on bringing the military home from Iraq. And it can determine steps, such as: first relocate them to bases away from fighting.

Posted by: MatthewRMarler on January 31, 2007 at 7:23 PM | PERMALINK

BTD:

You need to learn to read, or perhaps need to stop dishonest selective highlighting. For instance, you highlight thusly from Jackson's concurrence:

That seems to be the logic of an argument tendered at our bar -- that the President having, on his own responsibility, sent American troops abroad derives from that act "affirmative power" to seize the means of producing a supply of steel for them.

But note that the part you highlight as if to say that Jackson is supporting your argument is not a view which Jackson endorses. Rather, it is as the phrase you neglect to highlight points out, the argument advanced by the government, which Jackson rejects.

The rest of your highlighting doesn't point to material which supports your position even taken out of context, so I'm not sure what your point is with it. You have present not one scintilla of support in your flailing about pointing to Jackson's concurrence, the Federalist papers, and your vague handwaving at the "plain text" of the Constitution without any reference to specific language therein, that the express power of Congress to regulate the military does not extend to providing conditions or limitations on the use of force on specific enemies. Nor will you find compelling support for such a position, which has been held to be wrong from the earliest days of the Republic, notably in upholding that, despite Congress's authorization of force against France by incremental legislation enabling the Quasi-War, the executive's use of force in that war remained constrained narrowly by the conditions and regulations Congress applied to that use of force. Your argument is contrary to the idea of Constitutional government and the principal of legality, contrary to the plain text of the Constitution and its assignment of powers regarding the military, contrary to the case law, and—despite your attempts to marshal them as part of your defense—contrary to the views of the executive roles articulated in the Federalist Papers.

It is, in short, completely and utterly wrong.

Posted by: cmdicely on January 31, 2007 at 8:21 PM | PERMALINK

I have to jump in here in disagreement with Kevin and BigTentDemocrat (BTD). It seems to me that they are granting to the President authority far beyond what goes with the title commander-in-chief. Consider the normal course of events for any commander-in-chief or commanding officer of any portion of the United States armed forces. In most cases some outside agency (usually the commanders CO) will assign the CinC some task but may well also state what portion of the forces under the CinCs command may be used to accomplish the assigned mission. It is not some inherent and absolute right of a commanding officer to always be allowed to use all personnel at his disposal for whatever task has been assigned him. Those who must assign tasks within the military do not generally have to worry that if they assign some task to a subordinate unit that the entire unit might go off if the task can be accomplished by only a portion. I see no reason for thinking that the President as commander-in-chief of all forces of the United States is in any different position. The relevant outside agency is, in his case, the United States Congress. Given that relationship, Congress determines that war is called for and then assigns to the President those forces needed to accomplish the mission. In that case Congress is free to augment or reduce those forces as it sees fit.

The problem I have with Kevin and BTD is that they are saying that if Congress deems that we should be at war with some other nation that the President has some inherent right to use all existent military forces for that invasion. That Congress has no power to say that this portion of our military shall be used for action against the stated enemy, but other parts of our military shall be used for other purposes. I see no sound reason in the Federalist Papers presented, or any others for that matter, nor in the constitution for this limitation. I certainly see no reason in good sense for doing so and it is a extraordinary grant of power to this one commander-in-chief far beyond the powers of any other.

Posted by: MSR on January 31, 2007 at 8:34 PM | PERMALINK

-but that congress can't do anything to stop Bush making war with Iran?

Congress doesn't have to sit and do nothing, they could make it really hard on Bush and his poll numbers show that not many Americans would care.

BUT say congress has no power, is like saying American citizens have no power. Is this a government of the people or is this Bush's dictatorship? That congress has no power over anything Bush is doing is bullshit, congress has simply let Bush do whatever he wants irregardless of our members responsiblity.

We have three thousand dead military members, I guess we're going for four thousand, and three thousand dead from 9/11, yet no Bin Laden, an nothing but a lost war in Iraq that is create more terrorist. Bush/Cheney are surely nothing but SOBs but congress just sit and watched it all, did nothing except kiss Bush worthless butt. And still if its not the GOP than its the Dems.

Posted by: Cheryl on January 31, 2007 at 9:14 PM | PERMALINK

>James:

[ There is much that is wrong in your post. First, I feel certain that, if kevin agrees with me, as he has stated, that he does not question for onew moment that Congress can disband the military in its entirety. More to the point, it can defund the war entirely.

Having that power does not mean that it can conduct the war it authorizes. Which is what the debate is about.

As for the Congress overruling the Supreme Court on Constitutional decisions, that simply is wrong and has been since Marbury v. Madison. ]

******************************************
BTD:

There is nothing wrong with the post.

The facts are quite straight. Congress is so power ful that it not only can disband the entire military, Congress can order the military what to do by producing a law which the president has to enforce. That's the job of the President's office, enforce laws made by Congress. (Granted it would need to over ride a veto, but once the veto is over ridden the president has to enforce the law; and if that law tells the military to do something the military had better do it. Plus the President might get impeached as well...no veto power there.)

In summary: BOTH the President AND Congress can tell the military to jump off a bridge. There is just extra work for Congress than the President to get it told. But Congress does have that tiny edge over the Executive Branch. But the president would have to piss off Congress to rile them up to that point: which Bush is doing.

As for the Supreme Court you didn't understand the post. I didn't say "overrule" or imply it. Here is the post about the SC again:

>Also, A lot of people think the Supreme Court has the last word on the law...it's doesn't. Congress "allows" the Supreme Court to have the last word. All Congress has to do is make a NEW LAW that CORRECTS the DEFECTS that the Supreme Court POINTS OUT that MAKES a law UNCONSTITUTIONAL. IF Congress cannot fix the defect, THEN the Supreme Court can have the last word for that moment. (Remember that the people can amend the Constitution; Which gives the people the power to have the last word on any subject.)

For the Supreme Court to get involved a law has to be challenged in a lower court, or Congress can ask the SC to review a law.

Off Topic: Impeach Bush.

Posted by: James on January 31, 2007 at 10:04 PM | PERMALINK

cmdicely:

I highlighted that section to demonstrate to you how the Iraq War, authorized by the Congress, was different the Truman's Korean War and why Jackson would show, among other reasons (primarily that Truman's actions involved DOMESTIC policy) less deference to the President in the Steel Seizure Cases, precisely BECAUSE the President was not acting with the authority of Congress - that is why Truman's power was at its lowest ebb.

You fail to grasp the significance of the Congressional authorization for war in Iraq - your absurdities about a C-i-C in wartime meaning nothing is at the heart of your error - WARTIME Constitutionally means when the Congress authorizes military action.

The Congress has not rescinded the Iraq AUMF. It can and should. But if it does not, the President's C-i-C power is at its highest level.

You simply do not understand Jackson's opinion. Moreover, you simply do not understand the argument I presented and Kevin endorsed.

I do not know if you do this purposefully or from ignorance, but you do not have the most basic understanding of the issue.

What is sad is that MArty LEderman glosses over the issue and has written a very poor series of posts on this issue.

Indeed, the Left law blogs have been particularly bad on this. They re semble nothing less than the Right Wing blogs when they were defending the ridiculous Bush administration legal theories on FISA.

I deplore shoddy legal thinking wherever it comes from. On this, it is coming from my fellow Democrats.

Posted by: Big Tent Democrat on January 31, 2007 at 10:07 PM | PERMALINK

Donald from Hawaii wrote:

"If Congress chooses to statutorily define a set of rules to limit current or future military operations, the president is constitutionally obligated to administer the expressed collective will of Congress with regards to his or her conduct of those operations as Commander-in-Chief. (See War Powers Act, 1974)."
____________________

Nobody has ever submitted the War Powers Act for SCOTUS scrutiny, but this might do it. What Congress is proposing is inevitably unworkable - logically, one cannot limit the President's power to conduct a war without effectively removing it entirely. Congress knows this, which is why they are only making a non-binding suggestion. They understand that if they were to make it a binding order, then the President would either have to ignore it, refer it to the Supreme Court, or allow the term Commander in Chief to become meaningless (for himself and his successors), with every decision subject to popular review.

Consider. If Congress can order that a necessary reinforcement is an unwarranted escalation, then why not:

- the deployment of additional carrier assets?

- attacks on enemy safe havens, previously untouched?

- redeployments that Congress deems unwise?

- the use of suddenly unpopular weapons, like mines, or cluster bombs, or depleted uranium?

- the use of already deployed forces to try do what the reinforcements were supposed to do?

How effective is command authority if it can be overruled at every turn? Just as there cannot be 535 Secretaries of State, there cannot be 535 Commanders in Chief. Restricting the President's ability to act might be Constitutional, but it probably isn't wise. Not if you don't want to invite such problems in every future war that doesn't go to plan.

Posted by: Trashhauler on February 1, 2007 at 4:54 AM | PERMALINK

To all you constitutionalists I repeat: when did Congress Declare War? Did I miss it? Authorizing a military expedition is not the same thing........ surely.

Posted by: maunga on February 1, 2007 at 6:48 AM | PERMALINK

In the post above, I wrote, "If Congress can order that a necessary reinforcement is an unwarranted escalation..."
_______________________

To clarify, the word "necessary" is used in the rhetorical sense that the Administration has stated it is, not that it is my opinion that it is. Actually, the point of my post remains the same either way.

Posted by: Trashhauler on February 1, 2007 at 6:48 AM | PERMALINK

Trashhauler,

Yes, Congress could do all those things, but it would require a 2/3 majority in both houses to override a veto. On the other hand via your interpretation of the Constitution all of the above mentioned bad decisions, plus a great many more, could just as well be made by the President acting alone. Surely you are not suggesting that by grating the President absolute authority to make these decisions that the opportunity for bad decisions has been eliminated. Rather, under your interpretation it would require only one foolish individual, the President, while under the interpretation where Congress does have the authority to act, it would require the simultaneous foolishness of some 357 foolish individuals properly distributed throughout the two houses of Congress. Furthermore, under your interpretation the people of the United States would require up to four years to correct the situation, while under the alternative interpretation the people could correct the situation within two years. I fail to see the advantages to your interpretation. Finally, why should the Commander-in-Chief not be in the same position with regard to the dispositions of his forces that all other commanders (including those that have been designated commanders-in-chief) are in. Specifically, commanders are generally directed by some outside agency (generally their commanding officer) to accomplish some objective and they are also instructed on what portion of the forces under their command may be used for that task.

Posted by: MSR on February 1, 2007 at 7:42 AM | PERMALINK

MSR wrote:

"On the other hand via your interpretation of the Constitution all of the above mentioned bad decisions, plus a great many more, could just as well be made by the President acting alone."
____________________

MSR, I wasn't offering an interpretation of the Constitution. I don't know if whether such Congressional action would be Constitutional or not. But that wasn't the point, anyway. My point was that such action would move ultimate command authority from the President to the Congress. I don't believe Congress wants to do that, which is why they are restricting themselves to non-binding statements.

Now, here is my opinion: The framers of the Constitution understood that you cannot run a war by committee and so constructed a system that would avoid that mistake. We tinker with it at our peril.

Posted by: Trashhauler on February 1, 2007 at 9:55 AM | PERMALINK

Trashhauler,

Ok, poorly worded by me. The essential issue I'm arguing is the interpretation of the term commander-in-chief and what authority it entails. I think that you, and others, are making it vastly greater and more independent than is required or is wise. I think that Congress does have the authority to set the nation at war, to set those objectives and to determine what forces may be deployed to achieve them. How to use the forces allocated to achieve those objectives is entirely within the authority of the President as commander-in-chief, but he does not have absolute authority to determine what forces may be used to achieve Congressional goals in declaring war. Also, keep in mind that under this scheme the President retains veto power over Congressional involvement so the Congress is only in the position to set broad goals and resources. I do not think that there is much chance of running the war by committee. Finally, the while the frames understood that you cannot run a war by committee they also understood that liberty is preserved by checks upon executive authority and to grant excessive authority to any one person runs the risk of tyranny. We tinker with that at our peril as well.

Posted by: MSR on February 1, 2007 at 12:27 PM | PERMALINK
For the Supreme Court to get involved a law has to be challenged in a lower court, or Congress can ask the SC to review a law.

Congress cannot ask the Supreme Court to review a law—the Supreme Court does not, and Constitutionally cannot, issue advisory rulings of that type. Congress can pass a law restricting the executive, and then sue to enjoin the executive to comply with the law, but that's not the same thing.

Posted by: cmdicely on February 1, 2007 at 1:15 PM | PERMALINK
What Congress is proposing is inevitably unworkable - logically, one cannot limit the President's power to conduct a war without effectively removing it entirely.

Whether or not that is true (I think it is clearly overstated, but we'll come back to that) and the Congress should not have this power, it is well-established in cases from the Quasi-War to the Steel Seizure Cases (as well as many between and since) that the Congress Constitutionally has the power to circumscribe the command authority of the President so long as it doesn't appoint a different officer to exercise that command authority independent of the President. Further, the authority to do so is clear and unmistakable in the authority given Congress over the government of the military in Article I, Section 8 of the Constitution.

Congress knows this, which is why they are only making a non-binding suggestion.

No, I think there are several factors at work that produce the drive for a non-binding resolution, at least as the first step:


  1. Many members of Congress are averse to taking responsibility.

  2. Members of Congress, while believing that Congress has both the legal power and the moral obligation to bind the President where necessary, recognizes the general value of freedom and judgement within broad national policy goals set by the legislature in the executive when it comes to military affairs, and thus prefer to use non-binding measures less prone to maladaptation to unforseen circumstances until and unless it is entirely clear (because they have been tried and failed) that they cannot get the executive to address the priorities Congress is concerned about.

  3. While there is broad agreement on principles of a level of specificity that can be articulated in a non-binding resolution, there is not yet as broad of an agreement on specific direction that would be a basis for binding legislation.

I do not think it means that Congress agrees with either the contention that they lack the Constitutional power to bind the President in the manner of conduct of war, or the contention that there are no conditions in which it could be good policy for them to do so.

They understand that if they were to make it a binding order, then the President would either have to ignore it, refer it to the Supreme Court, or allow the term Commander in Chief to become meaningless (for himself and his successors), with every decision subject to popular review.

The term "Commander-in-Chief" merely means that the President is the chief magistrate responsible for executing the policy adopted by Congress in its Constitutional power to govern the means used by the military and direct the ends to which those means are used, and that that role may not be reassigned.

It does not mean the President has independent Constitutional authority that supercedes that of the Congress as to either the ends to which the military should be applied or the manner in which the military should be applied to those ends.

That is not to say that, both as to means and ends, the President does not have a certain degree of residual Constitutional authority where the Congress has been silent implicit in the role of Commander-in-Chief, so long as that does not conflict with the powers expressly reserved to Congress.

Consider. If Congress can order that a necessary reinforcement is an unwarranted escalation, then why not:

- the deployment of additional carrier assets?

- attacks on enemy safe havens, previously untouched?

- redeployments that Congress deems unwise?

- the use of suddenly unpopular weapons, like mines, or cluster bombs, or depleted uranium?

- the use of already deployed forces to try do what the reinforcements were supposed to do?

Congress has Constitutionally (and has exercised historically) the kind of power expressed here. So?

How effective is command authority if it can be overruled at every turn?

Far more effective than command authority is if it is not accountable, which is the alternative. The Commander-in-Chief has the power to command within the law, not to write the law governing the military himself. He is a President, not a King.

Just as there cannot be 535 Secretaries of State, there cannot be 535 Commanders in Chief.

That's true—both the Secretary of State and Commander-in-Chief are officers bound entirely by the law who serve functions that are best coordinated by one person. Nevertheless, the unitary nature of the function they perform does not expand the scope of the function to include superiority to the law or independent authority to make the rules against the legislative power.

Restricting the President's ability to act might be Constitutional, but it probably isn't wise.

Every law affecting the military "restricts the President's ability to act". Having such law is not categorically unwise. Sure, it may be generally be undesirable to regulate matters of a certain specifity in the Congress, OTOH, that generality can not be the end of analysis: in actual, specific, cases the specific actions that are being undertaken and their wisdom must be considered.

I would agree, of course, that if the executive is so bad that detailed, ongoing microdirection of military actions by Congress becomes necessary, it is probably better to remove the President entirely through impeachment; there is no reason that actions of negligence or recklessness cannot be "High Crimes and Misdemeanors" warranting such action.

Not if you don't want to invite such problems in every future war that doesn't go to plan.

Congress has regulated and placed conditions on the use of force, not merely allowed it against a particular enemy power and let the executive have free reign, in virtually every conflict the US has engaged in under the Constitution, certainly as far back as the Quasi-War with France at the end of the 18th Century.

Were it to fail to do so—were it to, as you seem to suggest, decide that Presidential independence in military matters was of paramount importance—it would mark the end of accountability and open the door for the President, under the guise of assuming his "Commander-in-Chief" role in war, to assume the powers of a military dictator.

The framers of the Constitution understood the paramount importance of avoiding independent, unchecked power concentrated in one individual, which is why the executive power even where it comes to the military is so greatly constrained compared to other models available to the framers, why the power to regulate and govern the military in every particular is given, expressly and without limitation except for the identity of the officer who is entrusted to execute the directions so given, to the legislative, not executive, branch.

Posted by: cmdicely on February 1, 2007 at 1:46 PM | PERMALINK

cmdicely --- your points are amazingly clear, but I was relying on you to confirm or not as to whether we are actually At War, and if we are, when was it declared by Congress. If we are At War, the media have been extraordinarily silent and collusive since I would expect the UN to have been yelling blue murder about our unprovoked Declaration and Invasion for 3+ years.

Posted by: maunga on February 1, 2007 at 2:26 PM | PERMALINK
cmdicely --- your points are amazingly clear, but I was relying on you to confirm or not as to whether we are actually At War, and if we are, when was it declared by Congress.

We are clearly "at war" (in a state of international armed conflict) and have been since the invasion. War can happen whether or not lawfully declared. But was the war declared? Certainly so: the Courts have always held that, like most of the rest of Congress' powers, the power to declare war does not need to be invoked by specific "magic words", and can be conditional or limited, as well. The AUMF against Iraq is clearly a conditional declaration of war whose terms were satisfied (perhaps in bad faith, which may be a statutory crime and/or impeachable offense) by the Presidential determinations it was conditioned upon.

If we are At War, the media have been extraordinarily silent and collusive since I would expect the UN to have been yelling blue murder about our unprovoked Declaration and Invasion for 3+ years.

Many members of the UN were; however, the US and the UK, both of which were active participants in the unprovoked and illegal attack on Iraq, have a veto over the UN body (the Security Council) principally charged with addressing threats to international peace and security, so that institution was largely neutralized, and only able to have any influence by ignoring how the situation was arrived at and trying to work with the invaders to address the bad results; of course, they weren't allowed to or able to much of that, either.

Posted by: cmdicely on February 1, 2007 at 2:43 PM | PERMALINK

Thank you cmdicely, but I think there really is a distinction, and that it was clearly drawn, that Congress is the body which declares war, and did not do so, avoiding the term.......

I am not a constitutional lawyer and have limited access to sources and time, which is why I am constantly grateful to you for your time, thbought, sources, and resources. I still think you come across like a Jesuit, ---- complimentarily, of course.

Posted by: maunga on February 1, 2007 at 2:57 PM | PERMALINK




 

 

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