Mario Cuomo's Straw Man

On Monday, Mario Cuomo, the former governor of New York from 1983 to 1995, had an op-ed entitled "What the Constitution Says About Iraq" in the Los Angeles Times that, to put it bluntly, was an embarrassment. If one didn't know better, reading his opinions on congressional-executive war powers would lead one to believe that Cuomo knows nothing about constitutional law or national security law. Since I'm willing to give Cuomo the benefit of the doubt, we can only assume that he's creating straw man arguments purposively to score cheap political points.

Cuomo's argument is that:

the [Iraq] war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress -- not the president -- shall have "the power to declare war."

To Cuomo, this was a disastrous decision by Congress, and in the future:

We must do everything we can to end the war in Iraq and avoid a new tragedy abroad [in Iran] by recommitting to strict adherence to the rule of law and to the Constitution by the president, Congress and the courts -- especially with respect to war powers.

While it's true that the Constitution gives Congress the power to declare war, Congress has only done so five times in history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. And yet the US has used force well over 200 times without a formal declaration of war.

For Cuomo, this precedent has no relevance:

Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a "declaration" by Congress.

This is the first of Cuomo's pathetic straw man arguments. It is of course true that the Constitution cannot be amended by patterns of behavior. But it is equally obvious that Constitutional interpretation does change according to the behavior of government. This is made evident in the famous "Steel Seizure" case (Youngstown Sheet & Tube Co. v. Sawyer), in which Justice Jackson and Justice Frankfurter argued that the interaction between the president and Congress can and should be used to interpret the Constitution. For Frankfurter:

a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by Section 1 of Art. II.

Given that force has been used hundreds of times without Congressional approval or protest but with Congressional knowledge, such a gloss is quite clear. Furthermore, Jackson, in setting out his famous three categories for understanding the scope of presidential power, argued that:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, on in which its distribution is uncertain. Therefore, congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

Congress has not spoken (note, congressmen speaking do not equal Congress speaking. More on this below) against the war in Iraq, nor has Congress ever tried to restrain a presidential deployment of US troops. Such silence can only be read as creating a gloss or as Congress allowing the president to rely on his own independent powers.

But Cuomo is ready with another straw man argument to challenge this claim. It wouldn't matter, he says, if Congress did try to restrain the president:

Even if Congress were able to pass a veto-proof bill with respect to withdrawal, the president would resist enforcement of the bill, insisting that as commander in chief, he is immune from Congress' decision. That would raise a constitutional issue for the courts.

But judging by the courts' history concerning constitutional war powers, including decisions involving the Iraq war in the U.S. 1st Circuit Court of Appeals in Massachusetts, the judiciary would, in all probability, choose not to intervene, claiming that the disagreement between the president and Congress is a political question.

This is an absurd misrepresentation of the concept of a political question. A political question, in which the Supreme Court typically refuses to involve itself in a dispute between the legislative and executive branch, most often arises when Congress fails to speak with one voice to assert its Constitutional power. For example, in Goldwater v. Carter, Senator Barry Goldwater and several other members of Congress challenged the right of President Carter to nullify a treaty with Taiwan in order to establish relations with China, claiming that Senate's constitutional power of advice and consent meant that the Senate needed to vote on the nullification. The Court refused to hear the case, determining that it involved a political question. But what made the question political was not the challenge, but rather the fact that it was not the Senate as a body that was challenging the president, but rather a group of individual senators. Thus, the question of whether the president had the power to act unilaterally was not really being raised, as Congress was not asserting a different interpretation of the Constitution. Justice Powell's concurrence made it clear that if the Senate had, in fact, passed a resolution formally opposing the action by Carter, the Supreme Court very well might have heard the case, settling the question.

If Congress had ever tried to stop a presidential deployment of force by, for example, passing a joint resolution claiming its power to declare war governs all deployments of force (as Cuomo argues it does) or by cutting off funding for the troops, and if the president refused to obey such an action, the Supreme Court would almost certainly have to resolve the issue (although it's possible that the Court would try to defer action while the troops were in the field). Such an dispute would be a constitutional question of the highest order, and if there was a formal clash between the president and Congress, the question would have to be settled.

Cuomo goes on to say that "the sad truth is that the current conservative-dominated Supreme Court would probably support our current conservative president. As a practical matter, that means only the president can end this war or change our strategy in Iraq."

Another ridiculous claim, unless by "as a practical matter" Cuomo means without making the Democratically-controlled Congress take responsibility for ending the war. It is a clear, unambiguous, and well-established fact that Congress could cut off the funding for the troops if it truly wanted to end the war. No one, not even President Bush, disputes this. However, as was made clear during the last round of appropriations hearings, Congress refuses to do this. Of course it would be politically dangerous...but if the congressmen so fear being punished by their constituents, doesn't that give the lie to their claims in the first place?

It is ridiculous and absurd for Cuomo to try to blame the Court for this situation, when the fault truly lies with a Congress that refuses to act according to the principles it so vocally expresses. Cuomo's op-ed is little more than a political screed that ignores fact and constitutional law. It is an embarrassment, as is he.