View Full Version : In Wartime, Who Has the Power?

05 Mar 07,, 20:30
The Nation
In Wartime, Who Has the Power?

Published: March 4, 2007


THE Constitution seems relatively clear. The president is the commander in chief, and he has the power to deploy troops and to direct military strategy. Congress has the power to declare war and can use its control over the purse to end a war. But it has no say over how the war is actually prosecuted.

That poses a problem for Congress, as it debates the course of the Iraq war. Democratic proposals to check President Bush’s increasing unpopular war range from Senator Barack Obama’s “phased redeployment” of all combat troops out of Iraq by March 3, 2008, to Representative John Murtha’s attempts to impose specific standards for the training and equipping of troops.

Regardless of how these proposals fare politically, they raise serious constitutional questions that could affect not only the conduct of the Iraq war, but also the balance of power between Congress and the president in wartime.

Legal scholars — both critics and supporters of the Iraq war — say that if Congress tries to manage the deployment and withdrawal of troops without cutting funds, the president’s powers as commander in chief would be encroached, perhaps leading to a constitutional confrontation of historic proportions.

“If there were to be a binding resolution that said troops had to go from 120,000 to 80,000 by April 15, Congress would be, in my view, transgressing on the conduct of a military campaign,” says Samuel Issacharoff, a law professor at New York University. “Congress can’t tell the president to charge up the east side of the hill rather than the west, which is the definition of the president’s military authority.”

So how, exactly, can Congress assert power over the war, beyond its ability simply to pull the plug on its financing? History suggests that Congress has found ways of checking the president in the past without encroaching on his power as commander in chief. And, history suggests, as well, that neither side is that eager for a constitutional showdown.

There is little dispute that Congress could, if it had the political will, end the war in Iraq tomorrow by using its power over appropriations to cut off funds to the troops. “Congress could easily check the president,” says W. Taylor Reveley III, the dean of William and Mary School of Law and author of “War Powers of the President and Congress.”

“If Iraq continues to go badly or if it looks like the president might actually use force in Iran, I can easily see Congress passing something like the Cambodian or Vietnam spending cutoffs, which would force the setting of a timetable for withdrawal that was pretty brisk,” he said.

If Congress used its appropriations power in this way, even the most vigorous defenders of executive power agree, President Bush would have to acquiesce. “He would have to comply, and he would comply,” says John Yoo, the University of California at Berkeley law professor who, as a Bush administration official, defended the president’s authority to act unilaterally. According to Professor Yoo, Congress could immediately cut funds, or could order a phased withdrawal by authorizing a fixed amount of money each month for specified numbers of troops.

“The idea that the funding tool is too blunt is a view held by people who have never worked in Congress,” he says. “It can be a scalpel as well as a baseball bat.”

The problem is not that Congress lacks the constitutional power to cut off funds, but that it may lack the political will to do so.

“I think it’s inconceivable that Congress will cut off appropriations, because no one wants to leave people on the field without support,” says Michael Gerhardt of the University of North Carolina Law School.

Congress, however, has other cudgels. During the War of 1812, Federalist critics of President James Madison forced the resignation of his secretary of war, and, decades later, the House passed a resolution censuring President James Polk for unconstitutionally beginning a war with Mexico.

During the Civil War, Congressional Republicans wanted Lincoln to fire Gen. George B. McClellan and prosecute the war more aggressively. But they never tried to control actual troop movements. Instead, Congress tried to shame the Union generals into fighting by hauling them repeatedly before Congressional committees.

“It bordered on harassment, and Lincoln resisted some of the excesses, but even then, Congress never tried to issue orders about the deployment of troops,” says Professor Issacharoff.

Congress, of course, could assert itself in similar ways today, according to Professor Gerhardt. “Congress is entitled to have oversight hearings to see how well things are going, and to figure out where we should go from here,” he says.

Changes in technology also make it easier for Congress to micromanage military decisions if it chooses to do so. “In the 19th century, simply to send a command and find out what happened in the battle took weeks,” says Professor Issacharoff. “So neither Congress nor the president could micromanage. Now you can have battlefield commanders in a speakerphone in the well of Congress — you could have 535 generals shouting instructions.”

Congress would also be perfectly competent to examine civil liberties questions, like the restoration of habeas corpus for detainees held at Guantánamo Bay. It could pass resolutions opposing the war effort over Republican opposition, as Democrats have proposed to do. It could demand compliance with international norms about how the war is conducted.

But let’s say Congress passed a binding resolution that reduced troop levels without actually cutting off funds. What then?

“What’s likely to happen is that Congress will assert its power, and the executive will resist through delay, redeployment of troops elsewhere or simply disregarding Congress,” Professor Issacharoff says. “It will never be presented to a court, because when both branches are involved in disputes about war and claim overlapping powers, the courts tend to back down.”

Dean Reveley agrees. “These disputes about the powers of the president and Congress in wartime are waged with almost theological passion and conviction and the Supreme Court rarely intervenes, which is why war powers are still so murky,” he says. “Every time we’ve gotten involved in an unpopular war, which has been all our wars except the two World Wars, there has been an enormous amount of bickering between the president and Congress when it didn’t come out the way we wanted. Sometimes presidents have acted, Congress said ‘Don’t do that,’ and the president acceded, as in Vietnam. But mostly Congress has stood on the sidelines and complained.”

In other words, a constitutional crisis may not be the inevitable outcome.

“I think this will be resolved politically, as it has been in the past, and either the president or Congress will back down,” Professor Issacharoff says. “My sense is that it’s more likely to be Congress, because nobody wants to assume responsibility for managing a disaster.”

Even if President Bush wins a constitutional confrontation, Congress may react by asserting its powers against future presidents. “Congress will be much more careful in the future about authorizing force without restrictions on presidential power,” says Jack Goldsmith of Harvard Law School. “Every action on each side tends to provoke a counterreaction, which is probably what James Madison wanted.”

Jeffrey Rosen’s new book is “The Supreme Court: The Personalities and Rivalries That Defined America.”

Who has the power - the President or the Congress.

What is the exact division of responsibility of either when taken the US to war?

I believe that this is a contentious issue and it is not very clear.

Is that a correct surmise?

05 Mar 07,, 21:55
The President has the authority to deploy troops for whatever reason, but chiefly in defense of the USA, as he is the commander-in-chief. Congress has the power to declare war and raise and support the armed forces. Congress placed limits on the Presidential powers (War Powers Resolution of 1973). The President can deploy troops up to 60 days (with a 30 day extension) without the consent of Congress.

So to answer your question, both Congress and the Executive share war powers. Only Congress has the authority to declare war.

05 Mar 07,, 22:33

The article looks to be a balanced view on the subject. In addition to the standard GOP vs. Democrat tension that you see on various issues, there also exists a legislative vs. executive tension that will surface as well that are not necessarily the same as the GOP vs. Democrat tensions. For example, there was bipartisan support in Congress for the War Powers Resolution of 1973 to curtail what Congress saw as an imperial Presidency under the Nixon-Kissinger regime (although no executive has ever recognized the War Powers Resolution as being Constitutional and therefore limiting).

gray wolf
06 Mar 07,, 02:02
Who has the power - the President or the Congress.

What is the exact division of responsibility of either when taken the US to war?

I believe that this is a contentious issue and it is not very clear.

Is that a correct surmise?

Congress up until the Korean war had always stayed out of the running of wars leaving it up to the President and his Generals,but of course we haven't had a declared war since WW11 as thier was no formal Declaration of War in
Korea, Viet Nam or Iraq instead using the War Powers Act (a niffy way around the Constitution) to forment these wars,this I have to believe give's congress more say in the running of them for all have been highly unpopular wars and we have won none of them.
Hmm almost saying in effect we are not at war..