Arlen Specter is the Decider
(under Scottish law, anyway)
By Mark Kilmer Posted in War — Comments (43) / Email this page » / Leave a comment »
With Congressional Democrats putting on their Commanders in Chief uniforms, the President fired back from the Oval Office on Friday:
"I'm the decision-maker, and I had to come up with a way forward that precluded disaster,'' the president said. ``Some are condemning a plan before it's even had a chance to work.''
Not so fast. Snarlin' Arlen Specter has only just begun to bark orders to the troops, and he has let the President know how he feels in is heart of hearts:
"I would suggest respectfully to the president that he is not the sole decider," Sen. Arlen Specter, R-Pa., said during a hearing on Congress' war powers amid an increasingly harsh debate over Iraq war policy. "The decider is a shared and joint responsibility," Specter said.
I believe his powers are found under Scottish law.
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Specter was correctly defending the constitutional prerogatives of Congress, not his party. War powers are shared by the two political branches.
As for party loyalty, I should think that whatever political debt he owed President Bush was wiped clean by the senator's efforts to carry the White House's water last year by sponsoring a bill to gut the FISA statute. (The bill died at the end of the last Congress.)
what "war powers" does the Congress exert over how the President decides to prosecute a war that the Congress has authorized.
I understand how they can de-fund military operations, they did that in 1973 and again in 1974. Clearly, Congress can't conclude a peace separately from the President. I don't know what kind of security agreements we have with the Iraqi government but I would think Congress would have difficulty abrogating those agreements by a veto proof majority.
Really, in absence of a veto proof majority the Congress has little role to play here. Even on funding, if the President vetoes a reduced Defense appropriation he can spend according to the last approved budget under a continuing resolution and the Feed and Forage Act.
I would pay big money for a seat at a hearing where the idiots in the Senate and House (apologies to non-elected idiots) call Flag Officers before a committee and tell them how to conduct day to day operations.
On the "political debt" silliness, Specter never even got close to paying that one off when he refused to move judicial nominees to the floor over the - as necessary - dead bodies of Democrats and Lincoln Chafee.
You've hit the early list for dumbest post of 2007.
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The Constitution lays out the responsibilities of the branches clearly, the only "War Power" Congress is given is that of declaring War. The execution of Military action is clearly rooted in the person of the Commander in Chief. This precedent can be traced through Presidential history dating back to Washington's putting down of the Whiskey Rebellion and Jefferson's "military action" against Tripoli and the Barbary pirates. Both of these men, and many of those who sat in Congress during these actions were signatories to the Constitution.
won't vote to defund anything.
They are fine with non binding resolutions, but let them step up to the plate and actually defund the surge, or the war?
Ain't gwin fer tuh happen. That would take political fortitude and integrity, which is manifestly lacking.
As for the constitutional issue, I think, in general, once the Congress has authorized force they are not in a position to do much.
On the other hand, there is the political cost of Bush's full steam ahead non consensus implementation of policy. Courageous, the argument can be made.
But don't think the Democrat secretly hope this war goes on, at this level or higher, for the next two years.
Other things being equal, if the war is still going on like this in the summer of 2008 you can paint the White House Blue.
The defunding option you mention is, of course, the most salient power Congress possesses. And there have been more examples than those Indochina examples. See, for example, this CRS report: Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments. The mandate to terminate the Somalia operation in 1994 is another example.
There also are direct limits contained within an authorization for the use of military force, such as the 2002 AUMF, which does not clearly cover what is going on in Iraq today. The problem is that the President might argue that by continuing to appropriate funds for the newly defined war, Congress has authorized de facto the transformed conflict.
There might also be some hybrid act that says, for example, that no funds can be used in Iraq (perhaps in excess of some ceiling, etc.) without further explicit authorization from Congress. That way, if Congress did enact a new AUMF expressly targeting the new enemies we are fighting within Iraq today, such funding limits would not bind.
So I agree that funding remains the most important constitutional tool Congress has. There can be precise limits on funding, however, and no president I know of has ever defied such limits. (That was the testimory of expert witnesses at the Senate Judiciary hearing today.) I also agree with you that the veto is a valid check on that congressional tool.
As I said, war powers are shared. I did not say Congress has exclusive control. Neither did Sen. Specter.
the "hybrid" resolution you talk about requires a veto proof majority. Do you see that happening?
I also think the AUMF is completely adequate. Every mission has stated and implied task. Saying that the AUMF never anticipated having to stabilize Iraq (maybe not at this scale but stabilize, period) is like saying that moving equipment by sea wasn't included in the AUMF therefore it wasn't authorized.
There can be precise limits on funding, however, and no president I know of has ever defied such limits.
I didn't see the hearing but Teddy Roosevelt sent the Great White Fleet on it's round the world voyage despite Congress forbidding him to do so. He said something to the effect that he had enough money to send the fleet halfway round the world and it was up to Congress to bring them back.
the Executive Branch can play with the Legislative Branch, and nothing in the last six years indicates that GWB would do it, but I'd love to be surprised.
OK, I've never played it for such big stakes or on such a big stage, but I have played it at the state level and the rules are pretty much the same.
All executive action must be supported by an appropriation by the Legislative Branch. These appropriations are not generally divided very finely, so the Executive has considerable freedom to move money around within but not between appropriations. Thus, so long as the President has the money to operate the miliatary at some level of activity, he has great latitude in just how he operates it within the available appropriations, e.g., if he as an appropriation for troop transportation, that transportation can be between Ft. Benning and Ft. Ord or between Ft. Benning and Iraq or Afghanistan.
Congress' next move would be to either eliminate the whole transportation appropriation or put language in the budget forbidding the expenditure of the funds for certain purposes, e.g. transporting troops to Iraq. This the President can safely, in legal terms, ignore as an unconstitutional infringement on Executive power. The Congress can sue, but would ultimately lose at the USSC. They can, of course, impeach the President for refusing to follow their dictate, but that sword cuts both ways.
Even the whackos currently running the Congress wouldn't dare cut off a whole appropriation to the miliatary; they might refuse an increment, they might put in limiting language, but they're hoisted on their "we support the troops but not the mission" petard if they cut all funding for any particular purpose.
The current situation may be distinguished from how they abandoned SE Asia to the killing fields. There they could and did refuse to appropriate any money, but the appropriation was to support the Vietnamese, not to supply and transport US Troops.
It is a deadly game politically and it requires courage from the executive and enough supporters to foreclose some votes, something of which there is certainly no surplus. But it can be done; if the President wants a litmus test, it is well within his power to force the Congress to either bend to his will or to take a straight up and down vote on cutting off funds used directly to support the troops.
In Vino Veritas
I am not in disagreement with your reply, as far as it goes. I happen to think Congress lacks the political will, today, to take such steps -- especially with the fait accompli of the troops already deployed. Your example of Teddy Roosevelt is another excellent example of how a president can foil congressional objections politically by just such a tactic.
But because Congress lacks political will to cut off funds for some deployment does not mean Congress does not have the constitutional authority. In some cases, such as those discussed above, it has exercised that prerogative.
because I didn't see the hearing and my employer really, really, really frowns on streaming video.
Assuming away the votes, and assuming that we are NOT talking about cutting off funding, what prerogatives does anyone think Congress has concerning the tactics/strategy used in a military campaign?
I'd still say zero is the correct answer.
roughly five million Vietnamese, Cambodians and Laotians were murdered. Of course, that was OK because the cut off was slammed through by a Democratic Congress.
And that, by the way, is precisely why Congress should have NO say in war fighting. It is specifically not a "shared power", that is your little pipe dream for the day. Again, let Senator Hagel or Specter or Congressman Murtha call the Secretary of Defense or Chairman of the JCS and demand a change in the war plan. See just how far that gets.
Senator's are legends in their own minds.
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I am not talking about the relative merits of disengaging from Iraq (or Vietnam, Cambodia, Somalia, etc). The Constitution does not guarantee the enactment of wise policy; both Congress and presidents can do bad things constitutionally.
The main point I am making is that there seems to be a general notion among many commenters here that because they think some action is undesirable for practical reasons, it must be unconstitutional. But that is not the case.
Irrespective of policy, I am sympathetic to members of Congress pushing back against the incumbent President's claims to exclusive authority on a variety of issues, many related to war powers. Asserting checks and balances is what Specter's comments are all about.
so I'm still asking, other than cutting off funds, what can Congress do, practical or unpractical, to change the way the president chooses to fight a war?
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Please refer me to specifics in the Constitution where the Congress is given any authority, other than the aforementioned purse strings and war declaration powers, co-equal or correspondent to the Commander in Chief.
The President has, in fact, exclusive authority related to the conduct of war. If you don't believe me, ask Bill Clinton. There is no authority, outside the personal etchings of the aforementioned SenatorialIdiots™, for Congress to "share" in war powers.
Again, please cite specific Constitutional authority.
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drove the Khmer Rouge from power. Failing that, the "Killing Fields" would have continued unabated.
Don't get me wrong, it was like a war between Stalin and Hitler where you don't root for either side, but a reasonable case can be made that the Vietnamese intervention saved more Cambodian lives that died in the ensuing war, and it's pretty hard to argue that things would have been significantly different whether or not we funded anything in those countries after 1975.
Arlen as the IED Inspector General. I can think of no better use for his particular chunk of decaying protoplasm. Then the President ought to tell Congress that he is going to keep writing Iraq checks regardless of what they pass. Let's see how many divisions the Hill Scum can raise.
Envisioning when all that is Left is the Right.
Which is quite general.
Most of the conflicts involving this clause center around what types of things might be authorized or regulated. Unlike the core matter of whether to wage a particular war, which is more likely to involve funding and the declaration power, controversies arising under this clause are more likely to get settled in court.
The granddaddy framework for evaluating those inter-branch conflicts, John Roberts and Samuel Alito reminded us during their confirmation hearings, is Justice Jackson's Youngstown framework. So if constitutional controversies arise, this is the roadmap to for resolving them.
Another set of issues that might be decided in court is what actions are covered by a particular AUMF. This is a primarily matter of statutory, rather than constitutional, interpretation. In the case of the 2001 (post-9/11) AUMF, the Supreme Court has agreed with the administration that it covers some things (battlefield detention, within limits), but disagreed on another thing (military tribunals).
Quite obviously Congress has the power to enact rules of warfare and enforce international law -- including, for example, limits on how prisoner interrogations are conducted. An example of this is the War Crimes Act. Of course, the entire Uniform Code of Military Justice is an act of Congress.
There is an outstanding controversy about whether warrantless surveillance of domestic-to-foreign communications is authorized by either the 2001 AUMF statute or by the President's expansive constitutional theory. Notably, he is making every effort to avoid letting the courts decide these questions on their merits. His lawyers know that they have slim chance of winning on the merits in the Supreme Court.
If that constitutional question were confronted squarely, Bush would probably lose by at least 8-1. (I strongly supported the nominations of Roberts and Alito, and I am confident they would join such a majority if the question could not be ducked.)
One can always play with hypotheticals, but these are real-world issues I am aware of today.
were discussing decisions such as strategy and troop deployment. Congress controls the funds, so the war's opponents and would-be micromanagers, as I see it, are left with Russ Feingold's bizarre flailings.
"shared war powers".
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There is the power ...
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
Now, since you enjoy playing high-school debater's games, please list all the specific provisions of the constitution that say specifically that the president's duty as commander-in-chief trumps everything else.
This argument just is not going to be settled this way. In fact, it probably will remain unsettled, as the Founders obviously built tension into the system. Some of that tension will be resolved legalistically in court, but rarely; some will only be resolved politically.
So, in a historical context, please cite the precedents where a president has openly defied congressional limits on military deployments. There have been some, such as FDR's use of the Navy before WWII, but they were mostly secret. Since the big war-and-peace issues are not likely to be litigated, I do think that political enforcement of the boundaries will sometimes be imperfect. But usually presidents defer to a veto-proof will in Congress. As I mentioned above, I don't think that will is there today.
And the current Congress certainly won't push that envelope.
And there is absolutely nothing on your list that even comes close to addressing the assinine concept of "shared power".
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third and last time I'll ask.
You started out with a global statement about Congressional prerogatives.
We both agree, I think, that the odds of Congress mustering a veto proof majority for much as well as pulling funding is slim.
I asked before, in the particular instance with the president prosecuting a war under congressional authorization what can Congress do to change the way in which the president decides to fight that war?
here...
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If "pro" is the opposite of "con", what is the opposite of "progress"...
Senior Writer
The commander-in-chief cannot legally give an unlawful order.
And a raving fool. You just keep telling yourself Specter is right.
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... except to True Believers who prefer it to actual law. I have not noticed much in the way of substantive argument from you, nothing beyond ipse dixit.
save for suport Snarlin' Arlen, you shouldn't be too surprised. There is no argument on your side to support. And no one in Congress with the courage to press it. It's called a moot point.
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If "pro" is the opposite of "con", what is the opposite of "progress"...
Senior Writer
His full article is here.The concluding two cents...
In language practically indistinguishable from a classic declaration of war, the Congress said in October 2002 thatThe 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.
This brought all the discretionary powers of the commander in chief into play, in ways that the 1799 act in the Little case did not. It is conceivable that Congress could pass an act repealing this one, thus revoking the president’s statutory authority to use the armed forces in any manner relating to Iraq. It is even more conceivable that the president—any president in present circumstances—would veto such an act, citing his constitutional duties as the commander in chief. And if the Congress passed the repeal act over the president’s veto, I expect that any president—again, facing the present circumstances in Iraq—would defy it as an invasion of his power and duty as commander in chief in a war he had not yet successfully brought to a conclusion, even if he made haste to bring it to a conclusion with minimal loss of life and minimal risk of outright defeat.
And the courts? If they knew their business, they would almost surely stay away from any attempt to settle the issue. And the Adam Cohens at the New York Times would squawk about a “constitutional crisis” that Congress, not the president, had ginned up in a desperate, destructive need to assert itself, while the American people would almost surely back the president. The new leaders of the Congress would serve themselves, the Constitution, and the country if they stop their ears from hearing Adam Cohen’s siren song.
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If "pro" is the opposite of "con", what is the opposite of "progress"...
Senior Writer
And I found it risible that Whelan claims "any president" would openly defy an express congressional prohibition. The fact is, there have been several congressional acts that ended wars or deployments -- Cambodia, Vietnam, Somalia, etc. -- and no president has ever defied any of them.
So when you or Ed Whelan find such a historical precedent, I will take that prospect more seriously.
In any event, it would be a political face-off between the President and Congress. Historically, once Congress summons the will to act so decisively, Congress has prevailed. Again, I do not think that situation obtains today.
passed the Law over a presidential veto, and Bush continued to prosecute the War, he would be violating the Law, and would be impeached.
Moreover, in such a circumstance the public would almost surely support the impeachment.
It is an unlikely occurance, but the President is not a King.
To conclude otherwise is to so disregard the meaning of the clause giving Congress the power to declare War.
It would to take the Constitution, roll it up in a little ball, and throuw it away.
That supporters of the War would even make the argument you make suggests how badly they understand the current War.
either defund the military or void the War Powers Resolution. That would present interesting consequences, but I'm not sure an impeachment would result since the Administration would likely appeal the law to SCOTUS (or the appropriate jurisdiction) immediately. It would be heard quickly and Congress would not act until the case was heard. Or not.
However, that scenario has nothing to do with the topic that has been kicked around. Specter, and some other stoneheads, seem to think that Congress has some magical - certainly not Constitutional - right to "shared" decision making in war time.
Let them try to pass a law. It will be very instructive for the Members of Congress. And fun to watch.
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If "pro" is the opposite of "con", what is the opposite of "progress"...
Senior Writer
1). Your next post will include a sincere apology for trying to lump in all supporters of the war into your strawman, or it will be your last post. No jokes, and don't bother trying to weasel out of it.
2). For somebody so worried about the Constitution, you seem rather unconcerned about letting Congress define it any way that you like. The Legislature makes for an even worse King than does the Executive.
3). There is no 3). Just... don't do stupid things like 1). again here, all right?
Moe
The Fuzzy Puppy of the VRWC.
Moe,
I know your threat to expel "fladem" is not directed at me, but similar threats from RedState moderators have been. And I have seen others expelled for making comments much less questionable logically than fladem's. Ad hominem, ipse dixit and name-calling are allowed and encouraged among the True Believers.
I am appalled at the anti-intellectual tone that has grown here, especially lately. ("If you disagree with me you must be too 'stupid' to contribute, so you are expelled.")
I consider myself a strong legal conservative, and I am pretty sure I was campaigning for conservative Republican political candidates long before most of you guys were a twinkle in your daddies' eyes. But I choose not to associate here any longer. Regretably, that also means I must forgo commenting at confirmthem.com, which at least used to have robust discussion, because of your software linkage.
I resolved the last time I saw such goon tactics not to sit silent, lest acquiescence might cause me to withhold saying things I believe because I fear they might be unpopular.
So please do me the service of killing my RedState login. Enjoy your echo chamber.
Very well: Jack Ketch will give you the gift you crave. May it expiate your shame...
The Fuzzy Puppy of the VRWC.
I would hope that even our current USSC would recognize the difference between "government and regulation" in general and the "deployment and employment" of forces in response to a specific situation in an authorized conflict.
The original reference is from the actual impeachment, but I can't help but think of the SNL Sketch.
So there is no such thing as "Scottish Common Law". It makes as much sense as citing "French Common Law".
The only references that Google turns up to "Specter" and "Scottish common law" are to bloggers criticising him for making the reference and to Saturday Night Live. All the contemporary media references suggest that he actually said "Scottish law", which would make sense.
Quentin Langley
Editor of http://www.quentinlangley.net
International Editor of
I didn't mean to imply that Specter's actually line necessarily implied ignorance of Scottish Law. Sorry for the the confusion...just wanted to inject a bit of levity.
I still believe that President Bush should of supported Pat Toomey in his '04 Pennsylvania U.S. Senate race instead of supporting Senator Specter. I still believe that Toomey had, at least, a 50/50 chance of winning that seat, and I also know that many conservatives will still say that Toomey would of lost that seat in November of '04 if he had beaten Specter in the '04 Republican primary. Senator Specter, along with many other RINO Republicans at every political level, continues to disappoint many conservatives all over the country on a variety of issues.