Congress Speaks Up...But What Did It Say?

Yesterday, the Senate joined the House in passing an appropriations bill containing language requiring the president to begin withdrawing troops from Iraq by March 1, 2008, or even sooner if the Iraqi government does not meet certain benchmarks. The bill is certainly destined for a presidential veto...so what now?

I'm not completely convinced that the way in which Congress is trying to impose these deadlines on the deployment of US troops in Iraq is completely legal and constitutional. With this bill, Congress is trying to use the power of the purse to restrict US military activities in Iraq. But, looking at the language of the bill, it's not clear that's what Congress actually did. The parts containing the deadline for troop withdrawal (Section 1904) read as follows:

SEC. 1904. (a) The President shall make and transmit to Congress the following determinations, along with reports in classified and unclassified form detailing the basis for each determination, on or before July 1, 2007--

(1) whether the Government of Iraq has given United States Armed Forces and Iraqi Security Forces the authority to pursue all extremists, including Sunni insurgents and Shiite militias, and is making substantial progress in delivering necessary Iraqi Security Forces for Baghdad and protecting such Forces from political interference; intensifying efforts to build balanced security forces throughout Iraq that provide even-handed security for all Iraqis; ensuring that Iraq's political authorities are not undermining or making false accusations against members of the Iraqi Security Forces; eliminating militia control of local security; establishing a strong militia disarmament program; ensuring fair and just enforcement of laws; establishing political, media, economic, and service committees in support of the Baghdad Security Plan; and eradicating safe havens;

(2) whether the Government of Iraq is making substantial progress in meeting its commitment to pursue reconciliation initiatives, including enactment of a hydro-carbon law; adoption of legislation necessary for the conduct of provincial and local elections; reform of current laws governing the de-Baathification process; amendment of the Constitution of Iraq; and allocation of Iraqi revenues for reconstruction projects;

(3) whether the Government of Iraq and United States Armed Forces are making substantial progress in reducing the level of sectarian violence in Iraq; and

(4) whether the Government of Iraq is ensuring the rights of minority political parties in the Iraqi Parliament are protected.

(b) If the President fails to make any of the determinations specified in subsection (a), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq no later than July 1, 2007, with a goal of completing such redeployment within 180 days.

(c) If the President makes the determinations specified in subsection (a), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq not later than October 1, 2007, with a goal of completing such redeployment within 180 days.

Note that the withdrawal demands make no mention of prohibiting funds being used for the troops. In other parts of the bill, for example Sections 1311 or 1312, Congress places explicit restrictions on the way in which monies can be spent. Section 1311 states that:

None of the funds appropriated or otherwise made available by this or any other Act shall be obligated or expended by the United States Government for a purpose as follows:

(1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.

(2) To exercise United States control over any oil resource of Iraq.

while Section 1312 states that:

None of the funds made available in this Act may be used in contravention of the following laws enacted or regulations promulgated to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

These are clear, unambiguous, and perfect examples of Congress using the power of the purse correctly. Congress is free to place restrictions such as these on monies appropriated to the president, and has, in the past, used such restrictions to bring to an end, or prohibit, presidential foreign policies with which Congress has disagreed, such as the possible expansion of the Vietnam War into Cambodia, the Vietnam War itself, and support for the contra rebels in Nicaragua.

But this is not what Congress has done with the troop deadlines. Section 1904 simply demands that the troops be withdrawn according to the timetable outlined by Congress; there is no language prohibiting funds to be used to maintain troops in the field. I'm no expert on Congress or the specific nature of legislative language, but it seems to me that the president could choose to claim that this attempt by Congress to force a withdrawal is an unconstitutional encroachment of Congress on to the commander-in-chief power of the president. Congress may not tell the president when and where troops may operate, especially not once those troops have been authorized by Congress (as they have with the AUMF) and funded (as they would be with this bill).

What would be ideal, from my academic perspective, is for Bush to sign the bill and then refuse to comply with the deadline, which would put to the constitutional test some serious issues of war powers: Can Congress control the deployment of troops? Does the AUMF equal a declaration of war, as the administration often claims? It's not entirely clear that the president would win in the Supreme Court, but given my reading of case precedent and the make-up of the current Court, it does seem likely.

But the larger question is: Why does Section 1904 lack the language of explicitly prohibiting funds for maintaining US troops in Iraq?

There are several possibilities that come to mind. First is that Congress is trying to use its interpretation of the "declare war" clause, a la the War Powers Resolution, to end the war. In this scenario, Congress believes that the president needs explicit congressional approval to prosecute military operations and that by passing this bill that approval no longer exists. The problem here is twofold: First, it's not clear that this language would serve to undo the AUMF, and that without expressly revoking the authorization granted in the AUMF, any effort to order troops here or there looks like tactical moves that violate the CINC power of the president. Second, as I have argued in many places recently, it's not clear that the War Powers Resolution with its interpretation of congressional war powers is in fact constitutional.

The second explanation for the absence of the prohibiting language is that Congress had to back away from the stronger language in order to assure passage of the bill. The votes in both houses was very close -- 51-46 in the Senate and 217-208 in the House -- and required both moderate Democrats and a few Republicans to vote yes. Those more centrist politicians may not have been willing to vote for a bill that, even if vetoed, would have put them on the record as having voted to de-fund the war. The legislation as passed, however, doesn't de-fund the war.

Despite the publicity surrounding this bill, it seems as if it was never really intended to force the president to bring the troops home. This should not be surprising. Much of politics is about wheeling and dealing and back-room wrangling. Congress tries as much as possible, especially when foreign policy is involved, to voice its opinion without actually taking action. And this bill does exactly that.