Today in Slate, Noah Feldman and Samuel Issacharoff argue that Congress has relatively few tools for altering the course of the Iraq war. It can end the war, or cut off funding. But Congress can’t take the intermediate steps some of its members have been considering. Is that right?
Any discussion of whether Congress has the power to limit how the president conducts the war in Iraq comes back to the question: What would the courts do? Congress and the president will probably avoid a legal confrontation by resolving their differences. But if they don’t, the courts will have to decide whether the Constitution permits Congress toset a date for troop withdrawal, or cap troop levels, or otherwise stop the president from sending more troops to Iraq. There aren’t that many relevant past cases on the books, and they’re not a slam dunk. (If they were, law professors wouldn’t be weighing in on both sides.) But most of the evidence suggests that if Congress tried to curtail rather than end the war, the courts would probably back up the legislature.
It’s essentially beyond dispute that Congress can end the war, and that it can use its constitutional authority “to raise and support Armies”* to cut off funding for military deployment in Iraq. What’s contested is whether the legislature has a say over troop levels and timetables and whether it can attach conditions to military funding. It’s true that the courts don’t relish ruling on legal challenges to the president’s authority to wage war. In the past, for example in relation to the Vietnam War, judges have refused to rule when individual members of Congress have sued to challenge the president’s interpretation of his authority to wage war.
But if Congress goes ahead and passes a proposal to curtail operations in Iraq—Sen. Barack Obama’s bill to start drawing down the troops this spring, for example, or Sen. Ted Kennedy’s to freeze their numbers—then the legal as well as the political picture changes. Of course, such a proposal would have to survive presidential veto to become law, so this is all awfully hypothetical. But if Congress were to impose limits on the war that made it past a veto, we’d no longer have a president who is asserting his executive authority and a Congress that is acquiescing. Instead, we’d have a fight between the branches. And when Congress tells the president not to do something and he does it anyway, the courts don’t tend to stand by, even when the congressional action is war-related. They get in and they show some respect for the legislature.
That’s one of the lessons of the Supreme Court decision that starts every war-powers discussion, the Steel Seizure case. Justice Jackson’s famed concurrence said that the president has more power when Congress hasn’t acted and less when Congress has. The court as a whole told President Truman that he couldn’t order the steel mills to keep operating so that U.S. troops in the Korean War would remain armed. As Jackson put it to his law clerks—one of whom was future Chief Justice William Rehnquist—”Well boys, the President got licked,” Jay Bybee and Tuan Samahon write in an article for the Stanford Law Review.
The Supreme Court has been similarly unwilling to let the Bush administration detain and treat enemy combatants as it sees fit based on unilateral claims of executive authority. Instead, in the recent enemy-combatant cases Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the court invoked limits that Congress had set and made the president comply with them (or at least take steps toward complying).
What about the concern that letting Congress set troop levels amounts to micromanaging—to letting it draw up battle plans and decide exactly which troops should do what where? Harvard law professor David Barron, in testimony before Congress in January, pointed to examples of assertions of congressional power during war that have stood the test of history. In 1798, when the United States was fighting with France, Congress barred American ships from sailing to French ports. President John Adams issued a broader order, barring all traffic between American and French or French-controlled ports. In Little v. Barreme, decided in 1804, the Supreme Court refused to side with a naval officer who invoked Adams’ order when he was sued for seizing a ship leaving from a French port in the West Indies. Congress’ order, not the president’s, controlled. During the Civil War, Barron noted, Lincoln complied with congressional statutes that “intruded far more deeply into tactical judgments than those now being contemplated.” The Confiscation Acts told Lincoln to instruct Union soldiers to seize enemy property in the middle of battle, even though Lincoln thought it was better strategy for them not to.
Then there is the law that Congress passed in June 1973 barring the expenditure of funds for military actions in Cambodia, Laos, and Vietnam, as of Aug. 15 of that year. It’s true that this isn’t the strongest example of congressional muscle flexing, since it came at the very end of the war. But it looks a lot like setting a deadline for troop withdrawal, à la Obama.
Barron also pointed out that at the time, future Chief Justice William Rehnquist reviewed Congress’ action as an assistant attorney general for the Nixon administration—and endorsed it. Rehnquist noted that there would be an “exacerbated” separation-of-powers problem if Congress issued “detailed instructions as to the use of American forces already in the field.” But Rehnquist also acknowledged that “Congress undoubtedly has the power in certain situations to restrict the President’s power as Commander-in-Chief to a narrower scope than it would have had in the absence of legislation.” For support, he brought up Little v. Barreme. President Adams’ order “would have been valid” had Congress not legislated otherwise, Rehnquist wrote. But Congress did, and that’s why the president lost.
Rehnquist also mentioned that in 1940, at the start of World War II, Congress said that draftees could be used only in the Western Hemisphere (and the Philippines). When FDR sent troops to Iceland to relieve the British, he “chose to strain geography rather than law,” Rehnquist wrote, by obtaining the opinion of “apparently a minority-view geographer” who said that Iceland was in the Western Hemisphere. That’s a good example of a president recognizing rather than challenging Congress’ authority to set limits on troop deployment. Maybe the Bush administration will follow suit if Congress makes a similar move before this war is over. If not, the courts may have something to say that the president won’t want to hear.
Correction, March 6:The original sentence mistakenly quoted the constitution as giving Congress the power “to make and raise Armies.” (Return to the corrected sentence.)
