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The War Powers of Congress

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Message Bruce Morris
David Sirota summarizes on his blog (Sirotablog at the sentiment among many Congressional Democrats that there is little they can do to stop President Bush's proposed escalation of the Iraq War. They claim Congress largely lacks the power to prevent the President from inserting 20,000 more American troops in the middle of a Baghdad sectarian civil war fueled by hatreds both ancient and new and an Anbar Province guerilla insurgency that is a desert version of Viet Nam, or if you prefer, an American version of the successful 1916-1918 Arab guerilla revolt against an immensely more powerful occupying Turkish army glorified in "Lawrence of Arabia."

In response, I thought I would don my Community College part-time Political Science instructor and Master of Laws hats to set out and briefly analyze the basic Constitutional provisions on warfare powers. You may be surprised by how much power Congress really has.

Here are the Congress's powers regarding warfare, found in Article I, Section 8 of the United States Constitution.

To declare war . . . and make rules concerning captures on land and water;
To raise and support armies. . . ;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States.

With regard to funding, the Constitution gives Congress the power to:

lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.

Of course, we know that all bills regarding national spending must originate in the House of Representatives.

Here are the President's powers with regard to warfare, in Article II, Section 2:

The President shall 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

What the Constitution called the Militia, we now call the National Guard.

Without making this a legal research paper, suffice it to say that the intent of the founders in making the President the Commander in Chief was to place the military under civilian, and therefore voter, control. It was NOT designed to make the President a military officer or the military a pawn of the President. Despite this fact, the Supreme Court has given the President rather expansive powers when acting as Commander In Chief in times of war. But the subject at hand is the power of Congress over warfare and its ability to prevent or alter President Bush's proposed surge of American troops into Iraq.

First, let's be very clear. What the Democrats are really talking about when they claim they lack power is politics. They are afraid they will be accused yet again of failing to support the troops and of being weak on the War on Terror, for one of the least understood principles in the Constitution's balance of warfare powers is the simple fact that without Congress there can be no military.

Only Congress has the power to "raise and support armies" and "provide and maintain a navy." In this sense, ONLY Congress, not the President, has the ultimate war power, the power to create a military in the first place. I am not speaking of wisdom, but power here. Surely Congress would never threaten to disband the American military and I would never suggest that, but Congress does have THAT MUCH POWER.

Yes, the President could veto any laws purporting to make changes in the military, subject to override by two-thirds of both Houses. The bottom line is that a relatively unified Congress has THAT MUCH POWER.

Do not let them get away with arguing they are subordinate to the President with regard to the military. If we are ever to free ourselves from the myth that the President has all the power when it comes to warfare, we the people must make Congress's actual power part of the public debate. That Congress can literally disband the military shows who has the real power.

The second principle on Congress's Constitutional power, as opposed to political wisdom, calculation or will, is the sole power to declare war. We all know Congress never declared war in Iraq. Thus, Congress could simply decide the President has no power to proceed in Iraq because it is an undeclared war. Congress may have precluded this route when it passed a resolution authorizing the President to use force in Iraq. Under the plain language of the Constitution, however, the power to declare war necessarily includes the power to undeclare war; the power to grant authorization to use force necessarily includes the power to rescind that authorization. One act Congress can take is to rescind the President's authorization to use force in Iraq or place limits on it, such as not sending more troops before a vote of the majority of the both Houses of Congress. Sirota notes that Nancy Pelosi, Jack Murtha and Ted Kennedy are all currently trying to impose such a limitation.

Third, contrary to assertions that Congress lacks the power to control what is actually done with the troops once they are raised and funded, the Constitution gives Congress the power to "make rules for the government and regulation of the land and naval forces." While this power surely falls short of ordering specific troop movements and the like, it does not appear to prevent other means of troop regulation. For example, nothing appears to preclude Congress making rules that tightly regulate the time troops can spend in combat overseas, or the number of rotations into combat each soldier can be subjected to over a defined period of time. Congress could at least assert their power and let the President refuse to comply and take the issue to the Federal Courts.

Fourth, of course, there is the well-known power of the purse. Congress can easily cut off all funding for Iraq. Again, think power, not wisdom or political sense. Congress can certainly refuse to fund any extra troops, or condition release of funds on limiting or reducing troop numbers. The President obviously intends to make this politically difficult by sending the troops right away and then casting any proposed reduction in funds as endangering troops already in battle.

Congress's final power rests over the Commander In Chief himself (hopefully, someday, herself): the power to impeach. Surely a President who ignores or violates Congressional denial of authorization to wage war or rules placed on the use of troops, is potentially guilty of "high crimes and misdemeanors." Congress should let the President know that ignoring their enactments on war and the military will subject him to impeachment proceedings.

In creating the brilliant divisions and balances of governmental power in our Constitution, our founders were trying to prevent the accumulation of excessive power in any one branch of government, but especially in the executive branch. In one of today's many inconsistencies rendering irony a futile art, our founders agreed with what modern conservatives who support unfettered executive prerogative still claim to believe: excessive governmental power is the greatest threat to liberty in civilized nations.

One of the founders' biggest fears was a military unaccountable to the people and controlled by unchecked executive power. To prevent this, they gave Congress first powers over the military-the powers to create, govern and regulate, fund, and declare war-and the elected Executive derivative power-to serve as commander of the troops.

Now you know. Don't let your Representatives and Senators shirk their Constitutional duties in military matters by claiming they don't have the power.
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Bruce is 46 year-old father of one, stepfather of three and grandfather of two, who left a lucrative law practice at a large national law firm to work, advocate and write for social justice and equality and find a way to incorporate a spiritual life (more...)
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