What Congress Can (And Can't) Do on Iraq

By David B. Rivkin Jr. and Lee A. Casey
Tuesday, January 16, 2007

Congressional Democrats (and Republicans) who oppose President Bush's decision to send additional American troops to Iraq may frustrate his plan, but not -- as suggested by Democratic Whip Jim Clyburn -- by imposing 21,500 strings on the 21,500 new troops. Just as there are constraints on the president's constitutional authority as commander in chief, there are limits on Congress's ability to direct presidential action. In particular, Congress cannot use its power of the purse to micromanage the president's execution of his office. Indeed, although the prosecution of the Iraq war looms large in today's political discourse, the consequences of substantive decisions related to the war are dwarfed by the imperatives of protecting the integrity of the core rules governing interactions between the executive and legislative branches, which are rooted in our distinctive constitutional fabric.

This constitutional fabric features two coordinate political branches, with unique responsibilities and independent legitimacies. Thus, even if one assumes that, as critics allege, the November election results were a call for disengaging from Iraq, efforts by some congressional Democrats to chastise the president through a resolution of "no confidence" in his Iraq policy have no place in our constitutional culture. The Framers did not establish a parliamentary system.

This does not mean, of course, that Congress is powerless. It could -- if the leadership mustered veto-proof majorities -- immediately cut off funding for U.S. operations in Iraq. Alternatively, Congress could refuse to pass new appropriations once the current ones expire. The refusal to pay for particular policies -- whether in war or peace -- has been the most important check on executive power in the Anglo-American political tradition, dating to the British Parliament's ancient insistence on the right to seek redress of grievances before voting supplies (i.e., money) to the monarch. Under our constitutional system, however, the power to cut off funding does not imply the authority to effect lesser restrictions, such as establishing benchmarks or other conditions on the president's direction of the war. Congress cannot, in other words, act as the president's puppet master, and so long as currently authorized and appropriated funding lasts, the president can dispatch additional troops to Iraq with or without Congress's blessing.

The precise line between congressional and presidential authority is sometimes unclear, and no court has jurisdiction to rule on the issue. The analysis, however, is straightforward. When the two political branches exercise their respective constitutional powers in a way that brings them into conflict -- a scenario clearly envisioned by the Framers -- the relevant constitutional principle is that neither branch can vitiate the ability of the other to discharge its core constitutional responsibilities. Just as the president cannot raise his own funds (by obtaining loans unauthorized by Congress, for example), the legislature cannot attach conditions to federal spending that would destroy the president's authority to direct the military's tactical and strategic operations. This balance makes perfect sense; if Congress could closely direct how the executive branch spends appropriated funds, it would vitiate the president's core responsibilities as chief executive and commander in chief, transforming him into a cipher. This outcome would fundamentally warp the Framers' entire constitutional fabric.

To maintain the integrity of this original design, the Supreme Court has long ruled, in such cases as United States v. Klein (1872) and United States v. Lovett (1946), that Congress cannot attach unconstitutional conditions to otherwise proper legislation, including spending bills. As explained by Professor Walter Dellinger -- President Bill Clinton's chief constitutional lawyer at the Justice Department -- "[b]road as Congress' spending power undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional ends." This includes restricting the president's authority as commander in chief to direct the movement of U.S. armed forces. In that regard, Dellinger quoted Justice Robert Jackson -- who said while serving as President Franklin Roosevelt's attorney general: "The President's responsibility as Commander-in-Chief embraces the authority to command and direct the armed forces in their immediate movements and operations, designed to protect the security and effectuate the defense of the United States."

Although this system may seem unsatisfactory to those who disagree with President Bush's Iraq policy, it has two great virtues. First, it bolsters the Constitution's fundamental design -- the separation of powers between the coequal branches of government. The Framers vested executive authority in a president for a reason. As Alexander Hamilton explained in the Federalist Papers: "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Second, requiring Congress to exercise its power in dramatic ways ensures political accountability. If Congress believes the war is lost, or not worth winning, it must take responsibility for the consequences of forcing a U.S. withdrawal. Otherwise, it must leave the president to direct the war and to bear responsibility for the decisions he has made and will make.

The writers are Washington lawyers who served in the Justice Department during the administrations of Ronald Reagan and George H.W. Bush.

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