Thursday, April 19, 2007

Congress Backs Down

Congressional Quarterly Today reports that the Democratic leadership in the House of Representatives is "preparing their rank and file for the likelihood that a final supplemental spending measure will contain the nonbinding Iraq withdrawal language favored by the Senate." While the House's appropriations bill contained language that attempted to force a complete withdrawal of US troops from Iraq by September 2008, the Senate's version of the bill only contained a non-binding target for withdrawal by March 2008. The bill would certainly have been vetoed by President Bush if it contained the binding deadline, but the House leadership appears to be unwilling to try to keep it in the final bill. Ultimately, while I have long been skeptical of the constitutionality of this attempt by the House to force the president's hand, it does show the wisdom of limiting the congressional role in foreign policy decision making and making it difficult for Congress to supersede the will of the president. Public opinion against the war may have bolstered the Democrat's in the November elections, but they're ultimately not willing to do what it takes to bring the boys home. Congressional spinelessness and unwillingness to appear soft on terror or unsupportive of the troops means that Congress will continue to snipe at the president's policies and the conduct of the war while avoiding all responsibility for the outcomes. A very unsurprising outcome.


Matt Bondy said...

That the (majority of) the Democrats and some Republicans are willing to pull these kinds of stunts is so disheartening.

The abdication of responsibility - which this absolutely is - fails the Constitution and the wisdom of American congressional democracy.

I would like to hear a counter-point regarding your claim that Congress' actions are unconstitutional. It seems like a valid argument to me.

Estimating that none will be made on this website, do you have any sense of how best your point would be countered by those who disagree?

Seth Weinberger said...

Matt: There are a few primary arguments that one would make to disagree with my contention that the recent attempt by Congress to impose a hard deadline on the withdrawal of US forces from Iraq is unconstitutional. The main one would be the "declare war" clause in the Constitution. This argument takes a broad view of what it means to declare war, arguing that it encompasses any deployment of US military force (with the possible exception of repelling a sudden attack). Adopting this view would give Congress complete and total control over when and whether the president could direct US troops into combat.

Another possible argument would rely on the War Powers Resolution, passed in 1973 over a presidential veto, that set a limit of 60 days in which the president could use force without congressional permission (with an extra 30 days to be granted if needed to bring the troops home safely). Following this argument, one could argue that whatever authorization Congress has granted the president (the AUMFs, for example) could be reversed by subsequent legislation. Thus, if Congress withdrew its authorization for any particular military deployment, the president would be forced to comply.

These would be the two best arguments against my claim. Obviously, I disagree with both.

Matt Eckel said...

With respect Mr. Weinberger, I don't see how you believe Congress's role in making (and breaking) war to be so Constitutionally limited. The basic political weapon that Congress has at its disposal, one that stretches back to the early days of British Parliament, is the power of the purse. Congress is fully within its rights to regulate how funds it authorizes will be spent, and to place conditions on such financial appropriations. This was clearly seen by the founders as one of the bedrocks of the checks-and-balances system. As long as wars cost money, Congress will (and should) have a role in dictating their course. Indeed, it strikes me that the thought of a chief executive obstinately pursuing a war beyond all limits of logic and reason, not to mention popular mandate, was precisely the specter that lead the Constitution's authors to ensure Congress would have a role to play in the first place.

Seth Weinberger said...

Matt (Eckel): I completely agree with you. Congress does have the power of the purse and has every right, politically and constitutionally, to use that power to dictate how the president uses the military. But if you had my earlier posts on this issue, the problem here is that Congress did not use the power of the purse here. Yes, it put the hard deadlines in the appropriations bills, but that is not the same as cutting off the funding. The bills did not contain language that says "the funds cannot be used for military operations in Iraq." That is what Congress has to do to use the power of the purse. And, even if it does that, the president still has the right to veto an appropriations bill, which, in this case, likely would have forced Congress to back down anyway, as Congress is too spineless to cut off the funding for troops in the field.

Matt Eckel said...

Fair enough, I evidently did not give your earlier post a careful enough reading. I have a speculative question that I'd like your gut feeling on. Let's assume that Congress did get a "spine" (a large assumption, I know, but indulge my thought exercise) but did not explicitly cut off funding, rather, simply refused to debate or pass the President's future funding requests. Do you imagine that the current administration would leave troops in the field absent appropriate funds, essentially daring Congress to continue withholding them?

Matt Bondy said...

It seems to be a bit murky here, politically.

Whilst Congress controls the purse, and the Administration controls foreign policy, it seems to me that Congress would only be constitutionally justified in cutting off funding if it felt the war was being economically mismanaged - using 'economics' in the broad sense the term.

But for Congress to cut off funding based upon political differences with the President including the congressional majority's different philosophy of IR, this appears to the amateur (Canadian, no less) a constitutional stretch beyond prescribed or reasonable limits.

Is there anything to the presumption that the appropriate role of Congress in this case is advice and consent?


Matt Eckel said...

As Dr. (?) Weinberger alluded to, Congress has the power to declare war according to the Constitution. During the last fifty years, however, the interpretation of this clause has been murky, as formal declarations of war seldom happen in modern global politics. In this context, the extent to which Congress must approve the Executive's use of the military is debated. Some have suggested that, if the Constitution's original meaning is to be followed, Congress in fact has a large role to play. During the time the Constitution was written, nations often fought wars with one another in very limited, circumscribed ways (England and France would fight for their colonial possessions while remaining at peace in Europe for example). Some have used this history to argue that "declaring war" is in fact an expansive term that involves not only entering into a state of war but directing (or at least influencing) the scope and course of the conflict. I know of no definitively accepted Constitutional ruling on this question. Perhaps Dr. Weinberger does?

Seth Weinberger said...

It is true that there are no definitive Supreme Court decisions on the questions of war powers. Congress clearly has the power to declare war, although exactly what that means is open to debate. As I argue, declaring war is more about granting the president legislative powers than commanding troops. Congress also is the sole provider of funding for the military. To answer Matt Bondy's question, if Congress refused to fund the troops, it would be literally impossible for the president to keep them in the field once monies ran out (the president does have a large amount of discretion in how already authorized funds could be used, but eventually those would run out). However, it's doubtful that Congress would even de-fund troops in the field; the only times Congress has barred the use of federal monies for military actions, US troops were not in the areas concerned (Camboda, Vietnam).

This is a fight that Congress could win, but won't because it lacks the courage of its convictions. This is not an indictment of this, or any, particular Congress, but rather Congress in general.