WSJ.com: "Congress has no Constitutional power to micromanage a war."
By paulseale Posted in Spotlight Blogs | War — Comments (16) / Email this page » / Leave a comment »
Ever wonder why the Constution calls the President the Commander in Chief and only gives congress the ability to declare war? Maybe thats because our founding fathers figured that Congress would micromanage the event and base strategy on self driven popularity.
The Wall Street Journal posted an excellent article today pointing out how Congress wishes to micromanage the war while politicizing it instead of allowing the generals in charge to fight it.
To understand why the Founders put war powers in the hands of the Presidency, look no further than the current spectacle in Congress on Iraq. What we are witnessing is a Federalist Papers illustration of criticism and micromanagement without responsibility...
All of this also applies to the many Congressional efforts to set "benchmarks" or otherwise micromanage the battlefield. Hillary Rodham Clinton says she is "cursed with the responsibility gene" that makes her unwilling to cut off funds, but instead she proposes to set a cap on U.S. troops in the theater. So while General Petraeus says he needs more troops to fulfill his mission, General Clinton says he doesn't. Which battlefield commander do you trust?
Mean while Congressman and Senators "wrap them selves" in the defeat which they drum up. That goes for Republicans and Democrats.
This is not to say that the resolution won't have harmful consequences, at home and abroad. At home, it further undermines public support for the Iraq effort. Virginia Republican John Warner even cites a lack of public support to justify his separate non-binding resolution of criticism for Mr. Bush's troop "surge." But public pessimism is in part a response to the rhetoric of failure from political leaders like Mr. Warner. The same Senators then wrap their own retreat in the defeatism they helped to promote.
Never mind what it does to the morale of our men and women who are fighting the war. Never mind what we are being told by our generals. Consequences? Psha, whats that? I have got poll numbers and a presidential campaign to run!
When our commanders do have the courage to tell those who wish to micromanage the war from Washington the truth of the matter they are told to "butt out" of political business at home. Never mind what was said was the truth.
In Iraq, all of this undermines the morale of the military and makes their task that much harder on the ground. When John McCain asked Lieutenant General David Petraeus that precise question during his confirmation hearing Tuesday, the next commander of Coalition operations in Iraq said, "It would not be a beneficial effect, sir."
And when Joe Lieberman asked if such a resolution would give the enemy cause to believe that Americans were divided, he added, "That's correct, sir." Several Senators protested and demanded that the general stay out of domestic politics, but his only offense was telling the truth. Of course the enemy would take comfort from any Senate declaration that Mr. Bush lacks domestic support.
In the end it is this type of politicing which has hurt the nation and our efforts in Iraq. How can we ask our men and women serving to focus on winning in Iraq and enemies to take us serious when our own leaders in Washington seem hell bent on pulling out as fast as possible regardless of the consequences?
The middle east is a different place where strength is honored and weakness is looked upon with disdain. It is that philosophy which emboldened Bin Laden to strike America over and over again in the 90s. It is one of the reasons why Insurgents feel that they can just wait us out right now. They can feel the lack of support from our own government.
I am not saying that everything is rosey and removing Abizaid for Petraeus wasnt a good idea. I think it is. Lincoln replaced McClellan with Grant during the civil war and Eisenhower made moves of his own with in World War Two. Some times changes are needed to adapt to the situation.
Similarly tactics change during any war. It is a given truism that no plan survives contact with the enemy. In this case the philosophy of staying in Iraq with a "light foot print" was not working. Will this new strategy work? I dont know.
What I do know is that we must give our troops in the field every opportunity to succede. While I believe that Congress does have the power to pull the plug on funding, I cannot believe that our founding fathers would support sending our men and women into harms way and then pulling the rug out from underneath them. The Wall Stree Journal puts it this way:
There is a long and unsettled debate over whether Congress can decide to defund specific military operations once it has created a standing Army. We lean toward those who believe it cannot, but the Founders surely didn't imagine that Congress could start dictating when and where the 101st Airborne could be deployed once a war is under way.
Mr. Bush was conciliatory and respectful in his State of the Union Address Tuesday night, asking Congress to give his new Iraq strategy a chance. In a better world, the Members would do so. But if they insist on seeking political cover by trying to operate as a committee of 535 Commanders-in-Chief, Mr. Bush will have to start reminding Congress who really has the job.
Indeed! Instead of trumping up failure, we need to honestly be supporting them. That means supporting the mission and helping them complete the objectives. It also means giving our Commander in Cheif and our armed forces the lattitude necessary to win.
What it does not include is dragging our generals back to Washington, D.C. every month or so to satisfy desired ectioneering and grandstanding for Congressional or President Campaigns.
I hope and pray elected officials and our leaders take note of the editorial. They could learn a lot from it.
latitude is a tough one for the Democrats, they are just so addicted to that power.
--
when you are addicted to power, its hard to let anyone else have any of it, especially when the constitution says they are entitled to it.
In what sense could any rational person deem what Congress is just talking about doing -- symbolically disapproving of the Bush "surge" in Iraq -- MICROMANAGING? MICRO???
Almost seems that the same logic would call the (almost abdicated) constitutional power to declare war in the first place "micromanaging".
Be fair, folks, and reflect on the reaction to Clinton and the Yugoslavia/Balkan conflict of the 1990's -- was it micromanaging too when Republicans objected to THAT conflict?
RWE in Hamilton OH
for the Resolution saying it was against the national interest to have troops in the Balkans?
Because you need to find one within the next hour or so. Now 12:50 EST.
The Founding Fathers, when wording the Constitution, never explained what constitutes "war". Therefore, when Congress passes a resolution authorizing the President to use force against another state, that is just as good as Congress passing a declaration of war. The Clinton expeditions in the 90's were tied to organizations in which we have treaties, treaties that stipulate we use armed force when these organizations' attempts at other methods of solving problems don't pan out. When NATO moves to bomb Milosivic out of Kosovo, we are apart of that due to treaties. This is in spite of what Republicans said during the time.
Standing athwart history yelling stop!!!! http://nationalwhig.blogspot.com
There seems to be an urban legend that the proper "conservative" position on war powers always favors exclusive control by the Commander-in-Chief. That is far from the case. See, for example, Scalia's dissent in Hamdi v Rumsfeld:
... Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President’s military authority would be “much inferior” to that of the British King:
“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.” The Federalist No. 69, p. 357.
this discussion is about a Senate resolution against the deployment of more troops to Iraq and the various numbnuts plans of a handful of members of Congress on how to fight the war.
Read your own quotes. You'll see that is exactly what we are talking about
It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy:
No one is saying the president has the authority to declare war, etc.
This is two inane comments you've made today. Think carefully before touching your keyboard again.
“It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature.”
Hamilton, up to the colon, speaks of the powers that the new presidency will have under the constitution. Here you see that all movements and engagements are at the descretion of the president. After the colon, Hamilton is explaining that he Congress will have the ability to declare war and raise forces, i.e. commission ships, officiers and bases. Once war is declared, the President has sole control of all movements within the scope of the war declaration.
Standing athwart history yelling stop!!!! http://nationalwhig.blogspot.com
Justice Scalia does not limit himself to discussing the congressional power to declare war, but also "all explicit authorization for [the] use" of armed forces, and (quoting Federalist 69) "raising and regulating of fleets and armies."
All I am saying, as a constitutional conservative myself, is that there is not a bright line that says the president always prevails over Congress. It depends on the situation, and then is not always an easy call. Read, for example, John Roberts' testimony on this point in his confirmation hearing:
Senator LEAHY: ... Do you agree that Congress can make rules that may impinge upon the President’s command functions?
Judge ROBERTS. Certainly, Senator. The point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The President is the Commander in Chief, and that meant something to the Founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the Armed Forces, another express provision in the Constitution. Those two can conflict if by making regulations for the Armed Forces, Congress does something that interferes with, in the President’s view, his command authority, and in some cases those disputes will be resolved in Court, as they were in the Youngstown case.
Many jurisprudential conservatives and constitutional originalists -- I daresay a huge fraction of the Federalist Society -- would agree with me that there is no bright line. You seem to threaten to vote all such persons off the island if they do not strain to agree with the WSJ editorial board's rather extreme view of where a line is drawn between the political branches in this area.
If quoting Antonin Scalia and John G. Roberts in this reasonable context gets me banned here, as you seem to be threatening, so be it.
you are inane.
You apparently bothered to read neither the discussion going on or the quotes.
Justice Scalia does not limit himself to discussing the congressional power to declare war, but also "all explicit authorization for [the] use" of armed forces, and (quoting Federalist 69) "raising and regulating of fleets and armies."
Funny, no one is proposing that the president raise armies or fleets. Right now the armed forces are operating under congressional authoriziation.
Try reading.
All I am saying, as a constitutional conservative myself, is that there is not a bright line that says the president always prevails over Congress.
Only if you can't read or, alternatively, comprehend what you are reading. Like in your Roberts quote. Are you familiar at all with the case he references and why a conflict was possible there unlike the current situation under discussion? Probably not.
Many jurisprudential conservatives and constitutional originalists -- I daresay a huge fraction of the Federalist Society -- would agree with me that there is no bright line.
You realize how pathetic this argument is? First, you don't know this. Second, you can't know this. Third, it really makes no difference.
If quoting Antonin Scalia and John G. Roberts in this reasonable context gets me banned here, as you seem to be threatening, so be it.
No they won't. But not being able to understand the discussion, throwing out-of-context quotes into a thread, and appealing you, as yet unestablished credentials as a member of the Federalist society who knows what they think, could very well accomplish that.
There are a variety of resolutions, proposals, etc., being discussed. Some are binding; some are not. Some involve the power of the purse; some do not. Some senators, including Sen. Warner, question whether the existing 2002 authorization, enacted pursuant to the 1973 War Powers Resolution, to go to war against Saddam even covers the current mission in Iraq. Such senators argue that the war authorized in 2002, targeted against the state of Iraq, is finished and there is now a civil conflict in which the Iraqi regime is our putative ally or beneficiary, which may require affirmative passage of a new authorization.
In other words, there are complex legal issues raised by the mix of such proposals, and no obviously general constitutional bright line that says Congress can never impinge on what the President considers to be his authority or regulate the shape of the deployment. There certainly is no inherently "conservative" principle that says the President is always right on all such legal questions.
And yes, thank you, I am quite familiar with the Youngstown case, and the very generalized tripartite framework that Justice Jackson's concurrence established there. (Actually, the framework was recast as a continuum, with even less clear lines, when it was adopted by the subsequent prececent of Dames & Moore.) Within that framework, the resolution of specific controversies and acts depends on their specifics.
I suspect that some controversies between Congress and the President would be justiciable, but that some the courts would leave to the political branches to wrestle with themselves. For example, that was what happened in Campbell v. Clinton, when members of Congress tried to sue the President to constrain military deployment in the Balkans under the War Powers Resolution.
As an aside, your own replies seem laden with ad hominem insults and weak on substance themselves. But, as you are fond of reminding those who disagree with you, this is your sandbox.
but I believe the resolution of 2002 also mentions one of our missions being the establishment of a stable democracy. Now, if that is the case, and I am going to have to search this, you cannot say that our mission is complete.
Standing athwart history yelling stop!!!! http://nationalwhig.blogspot.com
Senator Warner questioning whether the removal of the current Iraqi government gives him a loophole through which he can pull the Constitution does not make it a reasonable position. That's an application of the fallacy of the Exaggerated Conflict, a kind of Appeal from Ignorance (we don't understand and the "experts" are arguing, so any position is as good as another).
It is settled historically that the President has, in time of war, complete tactical authority over the armed forces. The military has a budget, however, and that is Congess's fiddle to play. Whether they can micromanage is a political question, and it is the only "complex" thing at issue: do the individual Congressmen think it in their political interest to micromanage the war? The complex question has a simple answer: apparently they do not.
The Constitutional question of whether Congress may micromanage the war is vacated by the observation that they can. Should Congress wish to do so, they could hold hostage myriad non-Defense projects, or even non-war Defense projects, that the President wants, to get his attention on things he doesn't.
All politics is fungible.
The Academy: researching the Illiberal Arts
A whereas clause does say this: "Whereas the Iraq Liberation Act (Public Law 105-338) expressed the sense of Congress that it should be the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the emergence of a democratic government to replace that regime;"
(That act, by the way, expressly excluded military force from its terms.)
However, a whereas clause does not authorize anything. The operative part of the AUMF, the only part of the statute that actually does, says only this:
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
So while I agree that one could argue inferentially that Congress intended the AUMF to authorize U.S. involvement in an Iraqi civil conflict, it is not explicit. Neither the President nor Congress anticipated this situation in 2002, and the legal issue is whether that should be made explicit to cover the new mission. That is distinct from the policy issue of whether that mission is in the national interest.
Its a great debate. I love seeing the intellectual fire power going back and forth on this one.
This is the kind of debate which can only strengthen our nation provided we have one left if we follow through with all the legal intracacies.
My point being is that this is really great discussion and I love being a part of it and I think it does help us.
However in the same breath I have got to point out that you are not able to see the forrest through the trees.
I do not believe our founding fathers intended wars to be fought by lawyers or politicians. History has borne this out.
Part of the process in deciding to go to war and ratify treaties and such, yes. Execute - no. It really is that simple.
What the Democrats and some Republicans are seeking to do is try and manage the execution of the war which is to be quite simply put, unconstitutional.
I do, however, quibble with your premise that all that is at issue is a question of military execution. Rather, the core of the issue above is whether Congress authorized today's conflict described by the President this week, one involving military action against Shia and Sunni "extremists." He acknowledged that this is fundamentally not the same war: "This is not the fight we entered in Iraq, but it is the fight we're in."
The particular problem is that Congress in 2002 did not authorize a war against Islamic extremists. It authorized a war against Saddam's Iraq, which included regime change, primarily to remove a threat of WMD. The war described by the authorization has been won. We have even declared the occupation phase to be over. Mission accomplished.
What Bush should have done, after describing this new set of enemies and new mission, was to ask Congress for an affirmative authorization to pursue this policy.
As an aside, I do think there is ample authority under the 2001 AUMF, enacted in response to the 9/11 attacks, to engage al Qaeda. But that is a different matter.
I note that while we explore the question of whether the terms Congress authorized, in what I do think was the functional equivalent of a declaration of war, our discussion tacitly assumes that Congress does have the right to define whom we are warring against. So the answer to the underlying constitutional question raised by the WSJ headline is yes, obviously Congress does possess this power and has excercised it in the past.
A great article, thanks. We should be honestly supporting them. Giving our CiC the latitude is a tough one for the Democrats, they are just so addicted to that power.