THE NATION

In Wartime, Who Has the Power?

David Plunkert
By JEFFREY ROSEN
Published: March 4, 2007
WASHINGTON
THE Constitution seems relatively clear. The president is the commander in chief, and he
has the power to deploy troops and to direct military strategy. Congress has the power to
declare war and can use its control over the purse to end a war. But it has no say over
how the war is actually prosecuted.
That poses a problem for Congress, as it debates the course of the Iraq war. Democratic
proposals to check President Bush’s increasing unpopular war range from Senator Barack
Obama’s “phased redeployment” of all combat troops out of Iraq by March 3, 2008, to
Representative John Murtha’s attempts to impose specific standards for the training and
equipping of troops.
Regardless of how these proposals fare politically, they raise serious constitutional
questions that could affect not only the conduct of the Iraq war, but also the balance of
power between Congress and the president in wartime.
Legal scholars — both critics and supporters of the Iraq war — say that if Congress tries
to manage the deployment and withdrawal of troops without cutting funds, the
president’s powers as commander in chief would be encroached, perhaps leading to a
constitutional confrontation of historic proportions.
“If there were to be a binding resolution that said troops had to go from 120,000 to
80,000 by April 15, Congress would be, in my view, transgressing on the conduct of a
military campaign,” says Samuel Issacharoff, a law professor at New York University.
“Congress can’t tell the president to charge up the east side of the hill rather than the
west, which is the definition of the president’s military authority.”
So how, exactly, can Congress assert power over the war, beyond its ability simply to
pull the plug on its financing? History suggests that Congress has found ways of checking
the president in the past without encroaching on his power as commander in chief. And,
history suggests, as well, that neither side is that eager for a constitutional showdown.
There is little dispute that Congress could, if it had the political will, end the war in Iraq
tomorrow by using its power over appropriations to cut off funds to the troops. “Congress
could easily check the president,” says W. Taylor Reveley III, the dean of William and
Mary School of Law and author of “War Powers of the President and Congress.”
“If Iraq continues to go badly or if it looks like the president might actually use force in
Iran, I can easily see Congress passing something like the Cambodian or Vietnam
spending cutoffs, which would force the setting of a timetable for withdrawal that was
pretty brisk,” he said.
If Congress used its appropriations power in this way, even the most vigorous defenders
of executive power agree, President Bush would have to acquiesce. “He would have to
comply, and he would comply,” says John Yoo, the University of California at Berkeley
law professor who, as a Bush administration official, defended the president’s authority
to act unilaterally. According to Professor Yoo, Congress could immediately cut funds, or
could order a phased withdrawal by authorizing a fixed amount of money each month for
specified numbers of troops.
“The idea that the funding tool is too blunt is a view held by people who have never
worked in Congress,” he says. “It can be a scalpel as well as a baseball bat.”
The problem is not that Congress lacks the constitutional power to cut off funds, but that
it may lack the political will to do so.
“I think it’s inconceivable that Congress will cut off appropriations, because no one
wants to leave people on the field without support,” says Michael Gerhardt of the
University of North Carolina Law School.
Congress, however, has other cudgels. During the War of 1812, Federalist critics of
President James Madison forced the resignation of his secretary of war, and, decades
later, the House passed a resolution censuring President James Polk for unconstitutionally
beginning a war with Mexico.
During the Civil War, Congressional Republicans wanted Lincoln to fire Gen. George B.
McClellan and prosecute the war more aggressively. But they never tried to control actual
troop movements. Instead, Congress tried to shame the Union generals into fighting by
hauling them repeatedly before Congressional committees.
“It bordered on harassment, and Lincoln resisted some of the excesses, but even then,
Congress never tried to issue orders about the deployment of troops,” says Professor
Issacharoff.
Congress, of course, could assert itself in similar ways today, according to Professor
Gerhardt. “Congress is entitled to have oversight hearings to see how well things are
going, and to figure out where we should go from here,” he says.
Changes in technology also make it easier for Congress to micromanage military
decisions if it chooses to do so. “In the 19th century, simply to send a command and find
out what happened in the battle took weeks,” says Professor Issacharoff. “So neither
Congress nor the president could micromanage. Now you can have battlefield
commanders in a speakerphone in the well of Congress — you could have 535 generals
shouting instructions.”
Congress would also be perfectly competent to examine civil liberties questions, like the
restoration of habeas corpus for detainees held at Guantánamo Bay. It could pass
resolutions opposing the war effort over Republican opposition, as Democrats have
proposed to do. It could demand compliance with international norms about how the war
is conducted.
But let’s say Congress passed a binding resolution that reduced troop levels without
actually cutting off funds. What then?
“What’s likely to happen is that Congress will assert its power, and the executive will
resist through delay, redeployment of troops elsewhere or simply disregarding Congress,”
Professor Issacharoff says. “It will never be presented to a court, because when both
branches are involved in disputes about war and claim overlapping powers, the courts
tend to back down.”
Dean Reveley agrees. “These disputes about the powers of the president and Congress in
wartime are waged with almost theological passion and conviction and the Supreme
Court rarely intervenes, which is why war powers are still so murky,” he says. “Every
time we’ve gotten involved in an unpopular war, which has been all our wars except the
two World Wars, there has been an enormous amount of bickering between the president
and Congress when it didn’t come out the way we wanted. Sometimes presidents have
acted, Congress said ‘Don’t do that,’ and the president acceded, as in Vietnam. But
mostly Congress has stood on the sidelines and complained.”
In other words, a constitutional crisis may not be the inevitable outcome.
“I think this will be resolved politically, as it has been in the past, and either the president
or Congress will back down,” Professor Issacharoff says. “My sense is that it’s more
likely to be Congress, because nobody wants to assume responsibility for managing a
disaster.”
Even if President Bush wins a constitutional confrontation, Congress may react by
asserting its powers against future presidents. “Congress will be much more careful in the
future about authorizing force without restrictions on presidential power,” says Jack
Goldsmith of Harvard Law School. “Every action on each side tends to provoke a
counterreaction, which is probably what James Madison wanted.”