Tuesday, January 09, 2007

Coming around

In arguments "off-blog," as it were, I have repeatedly argued the newly-elected Democratic Congress might have the opportunity to finally control part of the debate over Iraq, but they lack the opportunity to demand action from the executive branch. Arguments by some that Congress should use its power over the purse strings to cut funding for the war bothered me both constitutionally and, I admit, politically.

This new report from the Center for American Progress, however, shows that there is a tradition of using such funding checks against a president's power to wage war. An extensive list, it went a long way toward convincing me that limiting the use of funding was supported by recognized precedent.

This argument, however, sealed the deal for me:
...Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Congress can choose to block presidential warmaking ex ante, if it chooses, simply by doing nothing. If Congress had opposed the wars in Kosovo or even Iraq, it could simply have chosen not to provide any money. We should not confuse a constitutional defect for a failure of political will on the part of Congress to oppose presidential foreign policy.


Supporters of a Congress ex ante system rely on the records of the Philadelphia Convention, when the delegates changed Congress' power from "make" to "declare" war, because they wanted to give the president the power to repel sudden attacks. But this view usually ignores the treatment of the war power during the ratification process itself, which was the more important event. Many critics of the Constitution claimed that it vested too much power in the executive over the military; not a single defender of the Constitution responded that the declare war clause would give Congress any power to prevent this. Rather, James Madison in the Virginia ratifying convention argued that it would be Congress's power of the purse that would control the executive sword. Madison drew upon British history, in which the crown's control over the use of military force had been checked by Parliament's funding power.


(Regarding the conflict in Kosovo) Congress rejected a declaration of war and Congress rejected a statute authorizing hostilities. It only passed an appropriation for the war and a resolution expressing support for the troops. If the Justice Department read those and similar congressional actions as authorizing the Kosovo war, then it has relied on appropriations as approval for war...
This is not a new argument, but one I only recently read. While there is much to dislike about the nature of this rhetoric--especially the idea that Madison, et al., wanted the American presidency to be similar to a kingship with Congress merely controlling the money--but what is extremely important about it is who made them: John Yoo.

Yoo, you'll remember, was assistant Attorney General in the Bush administration from 2001 to 2003. He was instrumental in Bush's policies regarding torture and his beliefs about the nature of executive power are, frightening as they may be, form the basis of the administration's willingness to ignore the views of Congress.

No, I'm not arguing that any of the near-fascistic theories Yoo espouses about the Constitution should be taken at face value--or even seriously--but they do explain the boundaries battefield upon which Bush is willing to fight. This leaves Democrats with two choices: They either have to fight this "unitary executive" theory head-on now (while soldiers continue to die in Iraq), which, were justice to be served, would lead inevitably to impeachment; or, for the sake of the country, take the expedient route and fight the Bushies on the field they've chosen and deal with crackpot power plays afterward.

So I am now a believer. It is time to de-fund Bush's adventure.

Update: Paul Kiel, at TPMmuckraker, asks this question: Would Bush listen?
The Bush White House, after all, has often claimed unprecedented executive power. This issue is no exception. "Until the Bush admininistration, no president had ever argued in writing to the Supreme Court that a statutory restriction on his war powers was unconstitutional," Georgetown Law Professor Marty Lederman told me.

“All of our understandings and practices are based on a White House that’s more compromising and accommodating than some people feel this White House will be,” Scott Lilly, a former House Appropriations staffer, told me. So what happens if Congress makes its move and Bush ignores it? Good question.
I had this question, too, but that's why the support of Yoo and the other prophets of the "unitary executive" for this approach is important. Yes, it sucks that this is the tack that must be taken, but I hardly see how Bush could make a valid argument for ignoring this approach.


Blogger Jim said...


I was familiar that the founding father's expressly cited the power of Congress to cut funding as a check on the President's ability to wage war.

I hadn't realiazed that Yoo was on record advocating that power!

Yes. It is time for Congress to follow the lead of Madison, et al. Use the power of the purse to force an accounting of what has gone before and as the Constitutional check on the Bush administration.

7:51 PM  
Blogger MarchDancer said...

I had this about Yoo just a few days ago, and like you was convinced about the purse-strings hold Congress has on the president. My fear, still, is that since our men and women are already in Iraq, would this somehow leave them stranded? Shouldn't this have been done by a braver, less adoring Congress before we attacked a non-belligerant nation? Is it too late now?

I'm more on the side of the few leading Democrats who has said they will not leave our soldiers and marines stranded in any way, but they will force Bush to explain and amplify his need for more funds - every single time.

That control of funds, that saying of a loud, "NO," sent to the president, could be enough of control for this already out-of-control non-declared war.

12:56 AM  
Blogger Nitpicker said...

Well, by Yoo's argument, we see that the executive will take continued funding as continued support. What should happen is that Dems should designate money so it must be used for withdrawal, completed in six months.

4:53 AM  
Blogger Minor Ripper said...

So let me get this straight: Bush is now defying the Baker Report, Congress, the military, and the American public by escalating the war...Forgive me for not brimming over with optimism...

12:36 PM  
Anonymous Anonymous said...

Little v. Barreme (6 U.S. 170 (1804)) found that a U.S. military officer was personally liable for breaking the law when he followed an order from the president and the president's order violated or exceeded the binding congressional authorization for the use of military force.

In other words, the power of Congress to revoke or limit an authorization for the use of military force goes far beyond the power of the purse.

Does that mean that it would be constitutional for Congress to "micromanage" a war?

In a word, yes.

9:07 PM  
Anonymous The Fool said...

"So what happens if Congress makes its move and Bush ignores it?"


3:45 PM  

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