Article: Some Clarifications For The Feingold Hearings, Regarding The Powers Of Congress And The President In Iraq And Elsewhere

Under the Chairmanship of Sen. Russ Feingold, the Senate Judiciary Committee has begun hearings to establish the fact that Congress has the Constitutional authority to end the War in Iraq.

I almost cannot believe the degree of fuzzy-headedness among some people who should know better, regarding the relative powers of Congress and the President. The Feingold hearings should not even be necessary, because the basic Constitutional questions being explored there have already been answered clearly by the Constitution itself. Everyone involved needs to step back for a minute and see the Constitutional issues as they really are, not as they wish them to be.

Here are the fundamental questions, and their correct answers, based on the Constitution itself, as I read it. These are not difficult questions, and the only reason I can see for the present confusion is that some people's strong desires are interfering with their intellect. In particular, some Neo-Conservatives very much want the President to have Constitutional powers which he simply does not have, and so they believe they see things in the Constitution which really are not there, just like a hot and thirsty man in the desert sees a mirage of a cool, green Oasis, with water in a pool. And the biggest offenders in this regard, in my opinion, are Vice-President Cheney and his political allies, whose extreme desire for an all-powerful President has completely overwhelmed their ability to reason in this matter.

Here are the questions and their answers . . .

1. Q: If both Houses of Congress pass a bill, does it then become a Law of the United States?

A: No. It must first go to the President for his approval, which is expressed by his signature. If he signs it, that means he approves it, and it then becomes a Law, exactly as it is written. But if the President does not approve the bill as it is written, he can return it to Congress, with his written objections to the bill. And then Congress reconsiders the bill, in view of the President's objections to it. If Congress then re-passes the bill with a two-thirds majority in both Houses, it becomes a Law of the United States. This is known as "over-riding a Presidential veto." If Congress does not over-ride the veto, the bill does not become a Law, and it has no legal effect.

2. Q: What if the President does not sign the bill and does not veto it either?

A: In most cases, it would then become a Law in ten or eleven days. As the Constitution says, "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."

3. Q: What about "Presidential signing statements," where the President signs the bill but does not really approve it as written? Do these signing statements have any legal effect?

A: No. According to the Constitution, if the President signs the bill presented to him, this means he approves it, and it then becomes a Law. He has no Constitutional right to amend the bill as he is signing it. Signing statements, at best, are nothing more than gratuitous commentary, with no legal effect. At worst, they are un-Constitutional attempts by the President to assert power he does not legally have, to amend the Laws.

4. Q: What should Congress do if the President insists on issuing signing statements, claiming they somehow become a part of the law?

A: Congress could pass another bill which specifically strikes down the signing statements, and then present that bill to the President. So if the President has written, "I reserve the right to disregard provisions A and B in this bill," Congress could say, "The President shall not have the right to disregard provisions A and B in this bill." And if the bill becomes Law, and the President fails to administer it as it is written, he becomes subject to possible impeachment for the High Crime of deliberately refusing to execute the Laws of the United States.

5. Q: Is the President required to obey every bill passed by Congress?

A: No, he is only required to obey those bills which have become Law, according to the procedures in the Constitution as described above.

6. Q: Where does it say in the Constitution that the President must obey all the Laws of the United States?

A: The Constitution does not literally say that the President must obey all the laws of the United States; nor does it literally say that he must follow them. Instead, the Constitution uses the more powerful word "execute," as in "he shall take Care that the Laws be faithfully executed." (from Article II, Section 7) So not only must the President obey the Laws of the United States, and follow them, but he must execute them, that is, administer and enforce them. Therefore it is his job to make sure that the entire Government and everybody else in the country obeys and follows the Laws of the United States, including himself.

7. Q: Does Congress have the power to cut off funding for the war in Iraq, and thereby to force an end to the war?

A: Yes, and it requires only a simple majority in both Houses, not two thirds. But this is a very crude way to accomplish the task, and it allows the President far too much discretion in what He chooses to do.

8. Q: So how else can Congress bring this war to an end?

A: Congress can simply pass a bill which orders the President to stop the war and bring the troops home. The President would surely veto this bill. Then Congress could re-pass it with a two-thirds vote in both Houses, and it would become a Law, which the President is obligated to execute. If he failed to do so, Congress could then impeach him and remove him from office, for the High Crime of deliberately refusing to execute a Law of the United States.

9. Q: What if the President orders the Military to do something which violates a Law of the United States. Does the Military obey the Commander-In-Chief or the Law?

A: All of the Military, and everyone else in the Government, including the President, must obey the Laws of the United States. And if they fail to do so, they can be removed from their offices and possibly imprisoned, depending on the degree of their violations. If the Military obeys an illegal order given by the president, both they and the President are in violation of the Law and subject to removal from office and possible imprisonment.

10. Q: Doesn't the President have inherent powers, as the Commander-In-Chief of the Military, to conduct military operations however he may decide?

A: No. In the absence of any Law to the contrary, the President has inherent powers to direct the Military as best he sees fit, even taking some warlike actions without a formal declaration of War. However, Congress can force the President to take any action Congress orders him to take, as long as Congress can over-ride his veto with a two-thirds majority in both Houses.

11. Q: So then, can Congress micro-manage the conduct of the War in Iraq? And can Congress forbid the President to attack Iran, as he seems intent to do?

A: Yes, if it chooses to do so and if it can over-ride a Presidential veto with a two-thirds vote in both Houses. Everything depends on the Law: if a Law is properly enacted as specified in the Constitution, the President must faithfully execute it -- that is, put it into effect -- whether he agrees with it or not. And if he fails to do so, Congress can impeach him and remove him from office.

Blessings to you. May God help us all.