Thursday, January 25, 2007

On How to Misinterpret the Constitution

The editors of the Wall Street Journal would like us to believe that Congress has no authority to dictate to the President how he may wage war in Iraq. It is true that Congress has little Constitutional authority to influence events on the tactical level, which is perhaps what the editors mean by "micromanage." However, ordering 20,000 more troops into a war that has lost the support of most of the American public is not a question of tactics. It is a question of strategy, or rather, a question of whether war is to be waged at all. And this, most assuredly, Congress has the authority to decide.
In addition to being feckless, all 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.

Left out are the numerous implications that reside in this power to "declare war" and "appropriate funds." First, what Congress may declare, it may also undeclare. Congress has thus far not chosen to repudiate or modify the Authorization for the Use of Military Force Against Iraq Resolution of 2002 wherin it delegated to President Bush the authority to wage war in Iraq on the satisfaction of certain conditions. But what Congress can make it can un-make. Congress cannot use the process to change what authority the President has to wage the war as he sees fit, but they can revoke the delegation of authority to declare war and end the President's authorization to fight the war at the same time.

They are also correct that Congress has the authority to re-appropriate funds already appropriated for the war efffort. But the editors then make light of the power and the escalation of the war at the same time, as if Congress would attempt to use the appropriations power to move specific units around on the battlefield. Such a conjecture is absurd, and was rightly rejected by the framers of the Constitution. But the analogy is incorrect. Congress does in fact have the authority to defund active combat operations that it disagrees with on the strategic or quasi-strategic level, including expansions of the war that it disapproves of such as this escalation, or bombing Iran as part of the effort in Iraq. This almost certainly includes sending an additional 20,000 troops to Iraq, which is not a tactical decision so much as a strategic decision to escalate a war.

Beyond all that, the argument that some sort of non-binding resolution is "unconstitutional" is patently absurd. The resolution is no exercise of Congressional authority; it is an expression of Congressional opinion. It is political, not legal, and hardly subject to the Constitution as it binds the President to no particular course of action. The first part of the editorial deals with the politics of this resolution, but the characterizations the editors make regarding those undertaking the resolution are so absurd that they fail to warrant discussion here.

The more important point is that in the coming months (or years) there will be many on the side of Presidential authority and this President in particular who will try to tell the American people that once a war is begun, it cannot be ended. They will tell us that it is unwise politically and that it is against the interests of our country, and they will try to tell us that Congress has no authority to undo the war this President has made. They are wrong. Ending this war is increasingly become the dictate of a vast majority of the American people, it is in the interest of this country, and Congress most assuredly has such authority.

1 comment:

adam said...

Did you know that Hagel said that the original draft resolution for the use of military force pre-invasion said "the middle east" instead of "Iraq?"