By Michael Abramowitz
Washington Post Staff Writer
Friday, February 16, 2007
President Bush has not been shy about asserting robust powers for the presidency in waging war, but lately he has seemed to concede that Congress has a role to play as well. Lawmakers, he has indicated, are within their rights to try to cap total deployments or limit where troops can go in Iraq.
"They have the right to try to use the power of the purse to determine policy," the president told editors of the Wall Street Journal recently, in an interview that took some of his strongest conservative supporters by surprise.
For a president who has asserted broad executive authority to conduct aggressive interrogations of detainees and electronic surveillance of terrorism suspects without a court warrant, such comments may reflect as much pragmatism as any serious legal analysis. White House aides concede they are not interested in unduly antagonizing lawmakers at a time they need all the help they can get on Capitol Hill.
But as the debate in Congress shifts from nonbinding resolutions of disapproval for adding troops in Iraq to attaching conditions on funding for the war, a constitutional clash between the legislative and executive branches may be inevitable, say lawmakers and legal scholars with close ties to the administration.
After a vote today on a resolution condemning the new deployments to Iraq, House Democratic leaders will serve notice that they intend to attach conditions to the coming spending bill on the war that could arguably encroach on the president's constitutional powers as commander in chief to control tactics and operations.
These include riders that would prevent Bush from sending units to Iraq unless they are certified as combat-ready and that would require Army troops be given a year at home before an additional deployment to Iraq.
Democrats have described these conditions as part of a slow strategy to stop the war without cutting funding completely, which most parties agree would be legally permissible -- but politically difficult.
White House press secretary Tony Snow declined to be drawn into a discussion with reporters yesterday about whether such provisions would be "micromanaging" the war -- which some scholars think would be unconstitutional. The new White House counsel, Fred F. Fielding, is considered a pragmatist not particularly interested in new fights with Congress, but administration allies in the conservative legal world predicted that the White House would eventually chafe at such restrictions.
"The administration might try to be as accommodating as possible on issues short of a complete shutdown of the war, but if Congress clamps down on a core commander-in-chief power that the president thinks might be necessary to use in the war on terrorism, I do not think pragmatism will prevail," said one former top administration lawyer, who conditioned his comments on anonymity.
David B. Rivkin Jr., a White House lawyer in the George H.W. Bush and Ronald Reagan administrations, described the proposed congressional restrictions as the "epitome of micromanagement." He said he thinks "the White House will end up fighting the congressional micromanagement and, if it continues, will publicly articulate the view that it is unconstitutional and not binding on the executive."
Others speculate that Bush may be backpedaling a bit from his broad assertions of presidential power, some of which the Supreme Court rejected last summer when it struck down his plan for trying terrorism suspects in military tribunals.
"He had said on quite a number of occasions that he's the decider," said Sen. Arlen Specter (Pa.), ranking Republican on the Judiciary Committee. "He [is] not the sole decider. . . . As this debate has progressed, the president is acknowledging the constitutional role of Congress."
The administration declined to make available lawyers to discuss the constitutional issues surrounding the war debate, saying it does not want to discuss hypotheticals, but a Justice Department spokesman pointed to a number of opinions from the Office of Legal Counsel suggesting clear limits on congressional power.
In 1996, then-Assistant Attorney General Walter E. Dellinger III wrote a memo stating that congressional language prohibiting the president from placing U.S. forces under United Nations control during peacekeeping operations "would unconstitutionally constrain the President's exercise of his authority as commander-in-chief."
In an interview this week, Dellinger indicated that the Democratic proposals being floated on Capitol Hill -- such as a cap on troops in Iraq -- do not amount to that kind of tactical interference. He said there is a "striking consensus" on both the left and the right that Congress has the power to limit the scope and duration of the war -- not only through the power of the purse but through other war powers.
As Dellinger suggested, there is little question among most scholars that Congress has ample constitutional authority to shut down the war. "I am not aware of a serious dispute over whether it is constitutional for Congress to defund or otherwise terminate the war in Iraq," said Brad Berenson, who was in the White House counsel's office from 2001 to 2003. "The big debate is over whether it is wise."
Indeed, some Republicans seem to be baiting the Democrats to try to defund the war. John Yoo, a former Justice Department official who became well known for his expansive assertions of presidential authority, co-wrote a piece in the New York Times this week suggesting Congress has all the power it wants to stop the war but is engaging in "bluster" with nonbinding resolutions.
Dellinger said he is baffled by such arguments. "Although it does not become law, how can it possibly be considered meaningless for each house of the Congress to exercise the view in a formal recorded vote that a planned addition to U.S. forces is a mistake?" he said. "I think that the framers of the Constitution would be astonished that a president would proceed to increase U.S. involvement in a foreign war over the expressed objection of both houses of Congress."