By Emily Bazelon
Posted Wednesday, Jan. 10, 2007, at 5:41 PM ET
Congress is sticking to gestures in expressing its dissatisfaction with the Iraq War. The new Democratic leadership isn't trying to stop President Bush's planned troop increase. Instead, they're just planning a resolution to express disapproval of it, a measure whose only practical impact will be forcing Republicans to take sides on the issue. But what if Congress were to actually exercise its war powers? The Constitution gives Congress the power to declare war and also to decide when to fund and how to regulate the military. But generations of presidents have succeeded in expanding their authority as commander in chief at Congress' expense—and with its permission, tacit or otherwise. If Congress wanted to push back in Iraq, here's a list of possibilities for what it could do, from cleanest to messiest, legally speaking:
1. Unauthorize the war. Or reauthorize it.
In October 2002, Congress authorized the use of force in Iraq. It could repeal that resolution and pass another one saying no more war. Or it could reauthorize the use of force on a different and more limited basis. Sen. Robert Byrd argues for reauthorization. The idea is that the reasons we thought we were going to war—Saddam's supposed weapons of mass destruction and alleged operational relationship with al-Qaida—have nothing to do with the current conflict.
Two questions would follow from a de- or reauthorization of war resolution, as they would from any flexing of congressional war-power muscles. Would the president accept Congress' judgment, and which branch of government would the courts side with if he didn't? If Congress spoke clearly enough to repeal the authorization of force, it's hard to imagine the other branches wouldn't listen, no matter what the president's commander-in-chief powers are. As law professor Neil Kinkopf of Georgia State University writes, "When Congress, acting in the vast areas of overlapping power, tells the President 'no,' the President must comply." Harold Koh, dean of Yale Law School, makes a more aggressive argument about the lack of continuing relevance of the 2002 authorization of force.
2. Cut off the money.
This would also be pretty straightforward in constitutional terms. Congress has the power to "raise and support Armies." If Congress votes against spending more on the war in Iraq, the president presumably would have to comply.
There's a delayed-reaction problem, though. Ending future appropriations doesn't mean taking away current ones. Bush has the funds to get a troop surge under way—he's not asking for more money at the moment. So Congress would be a step behind if it tried to club the troop surge with this blunt weapon. And theoretically at least, it could risk putting soldiers in danger, by blocking the replenishment of spent equipment and ammunition.
3. Condition the money.
You want more money, Mr. President? OK, but you have to give us a fuller accounting of how you plan to spend it or a clear strategy for reducing the violence in Iraq. Or—Sen. Kennedy's tough-love version—you can have your money, but not for a troop surge.
The White House would undoubtedly say that such tying of its hands is an unconstitutional infringement on the president's core power as "commander in chief of the Army and Navy of the United States." Spokesman Tony Snow said Monday that he's demurring from playing "junior constitutional lawyer" but added, "You know Congress has the power of the purse. The president has the ability to exercise his own authority if he thinks Congress has voted the wrong way." At least some Democrats appear to agree with Snow. Sen. Joe Biden last weekend called it "constitutionally questionable" to "micromanage the war." Biden said Congress "can't go in and, like a tinker toy, play around and say, 'You can't spend the money on this piece and this piece.' "
A raft of law professors and lawyers disagree with Biden. They see little problem with Congress attaching strings to future appropriations. They believe Congress can tell the president that he can't use torture or nuclear weapons or 20,000 more troops, as long it does so through the funding power. There's some recent precedent for this. In June 1973, Congress stipulated in appropriating funds at the end of the Vietnam War that they could not be used to "support directly or indirectly combat activities." But according to Peter Irons' book War Powers, when Rep. Elizabeth Holtzman, a New York Democrat, sued to stop the bombing that continued that summer in Cambodia, the courts ducked. The Supreme Court stayed out of the case, and the Second Circuit invoked the "political question" doctrine, which is how judges usually duck out of policing war-powers fights between the executive and the legislature. Since then, courts have rejected efforts by members of Congress to sue the president for exceeding his war powers, ruling that lawmakers don't have standing to bring such a suit. (Though a soldier might.) So it's possible, at least, that making funding for the war conditional could prove trickier than simply shutting it off. On the other hand, if a bill like Kennedy's passed and then was challenged in court, the judicial-hands-off approach of the political question doctrine would favor Congress.
4. Set a time limit.
Congress could pass a law requiring that the president withdraw or redeploy troops according to a set timetable, Georgetown law professor Marty Lederman urges. He invokes the June 1973 law, which gave Nixon an Aug. 15 deadline for ending the fighting in Cambodia and Vietnam by saying no money could be spent on combat after that date. Nixon vetoed an early version of the bill, but in the end he got out on time. This wasn't exactly an act of great congressional self-assertion since it came at the tail end of the war. But it was something, and perhaps the current Congress could impose time limits at an earlier moment, when it mattered more.
Needless to say, the White House wouldn't like this one, either. But presidential commander-in-chief powers appear to trump congressional war powers in large part because presidents say they do and lawmakers let them get away with that claim. Congress will only find out what it can do about Iraq by trying to do something.