Balkinization  

Sunday, December 10, 2006

How Congress Might Send a "Message" to the President About Iraq

Marty Lederman

According to reports of a Friday White House meeting, Democratic congressional leaders quite understandably are frustrated with the President "over what they perceived as his reluctance to embrace major recommendations from the bipartisan Iraq Study Group." In this respect, the Democrats certainly are reflecting the consensus view of the U.S. public, 71 percent of which is said to be dissatisfied with Bush's handing of Iraq, and 60 percent of which favors a six-month deadline for withdrawal. (AP-Ipsos poll numbers.) (The President, on the other hand, is reported to be comforted by strong opposition to the ISG from his right-wing base, which appears to be under some otherworldly spell, or hubris, that prevents them from seeing that everything they've proposed over the past five years has led to catastrophe.)

"Democrats stressed to Bush in separate meetings the dire need for the administration to revamp its Iraq policy, . . . [b]ut some Democrats came away unconvinced that major changes were coming. 'I just didn't feel there today, the president in his ords or his demeanor, that he is going to do anything right away to change things drastically,' Senate Majority Leader-elect Harry Reid, D-Nev., said following the Oval Office meeting. 'He is tepid in what he talks about doing. Someone has to get the message to this man that there have to be significant changes.'"

Someone? How about Congress "getting him the message," Senator Reid, by actually requiring him to act? I fully realize that deciding which course of action we should take in Iraq, and when, are extremely difficult questions. It may be that coming to a consensus on particular statutory langauge would be very difficult under the circumstances. And there may not be a consensus, even among congressional Democrats, about many particulars of the ISG Report. But to the extent the Democrats can agree amongst themselves on at least some of the ISG recommendations, and/or on other proposals, they ought to put those directives in a bill, and have both Houses of Congress pass it.

It speaks volumes about our modern political system that, as far as I am aware, in the hundreds or thousands of articles and blogposts about the current dilemma in Iraq -- the vast majority of which complain about the President's inertia and stubbornness -- no one has so much has suggested the most obvious solution, the one actually contemplated under the Constitution: Congress can pass a law telling the President what to do (or what he may not do). Congress, after all, authorized the war in Iraq. The legislature can likewise now cabin or modify or condition that authorization. [UPDATE: I had failed to notice this: "Speaker-elect Nancy Pelosi said this week that Democrats would impose new standards and conditions in Iraq spending bills." So perhaps the idea is not so unthinkable after all.]

Would the President complain that such a law is unconstitutional? Of course he would -- although in most if not all respects, he'd be mistaken.

Would he veto it? Almost certainly.

Would Congress be able to override such a veto? Presumably not -- but if things get even more dire, public support dwindles even further, and other Republicans follow the lead of Senator Gordon Smith, who knows?

But even if the President were to veto the bill and there were insufficient votes to override, at least the issue would be joined, and the public could more fully understand where the Democratic and Republican parties respectively stand on the most important issue of our time.

And that wouldn't be a bad thing -- certain not for the public, and probably not for the Democratic Party, either.

Comments:

Great idea.

Much easier said than done and not just because of a lack of political will.

What exactly would the Dems agree on in this bill?

I posit that there are few things the Dems could agree to with sufficient votes to pass their own caucus, let alone a branch of Congress.

Let me rephrase that -- they can't pass anything that contains anything beyond platitudes with any sort of agreement
 

To what extent could one of those "sense of the House" votes do this work? For instance, if it were phrased something like "this resolution expresses the sense of the House that the President should follow the recommendations of the Iraq Study Group," and were to pass with high enough marks, wouldn't that give Republicans in Congress a means of commenting without fear of the political stakes involved in a bill that constricts or redefines possible executive actions towards Iraq?

If Congress' will were ignored in that form, it would probably generate much more support among those who were snubbed in any subsequent vote on substantive bills that forced implementation of those recommendations.
 

A related issue is this: At what point does the situation on the ground in Iraq cease to fall within the terms of the 2002 AUMF that authorized the Iraq invasion? Outgoing Armed Services Chairman Warner said a few months ago that the act did not appear to cover U.S. involvement in policing a civil war, and the legal underpinnings might need to be revisited if that is what is going on. And he is a Republican.
 

Professor Balkin:

1) Assuming as I do that the AUMF is a declaration of war, I am unaware of any provision of the Constitution granting Congress the power to withdraw such a declaration. As with his appointees, the President needs only to get Congress' initial approval.

2) Assuming arguendo that Congress has the power to withdraw a declaration of war, which one are you saying that Congress should withdraw? Congress has enacted AUMFs declaring war against al Qaeda and its allies and a second AUMF against Iraq. Both are in effect in Iraq.

If you reverse the Iraq AUMF but not the al Qaeda and allies AUMF, then you are saying that we may stay in Iraq to war against al Qaeda and its Iraqi Sunni allies, but not the Shia militias.

If you reverse the Iraq AUMF and remove Iraq from the al Qeada AUMF, which is essentially the cut and run option you are implying, then you are saying that we can fight al Qaeda in every country except the country where it has the greatest concentration of active fighters.

I have a hard time seeing either proposition being approved by this Congress, although I would love to see the Dems try it.
 

Lederman lives! Yay! I was beginning to fear he was being held in an undisclosed location as an Enemy Academic.

I think PMS's nonbinding resolution might work, but the problem with Iraq is that it's FUBAR, and thus the Dems can't really do much to fix the problem. The only thing we can quasi-realistically hope for is investigation into how we screwed up and where we can go from here.

And frankly, as a yellow-dog Dem, I don't have much faith in 'em; I would just like us to quit torturing prisoners and holding them indefinitely. *Maybe* the Dems can meet that mark ... though I expect to be serially disappointed.
 

Marty makes an important point. My own preference (should I even bother to add "of course") would be for a resolution (therefore not subject to veto, I believe) in which the respective Houses declare they have "no confidence" in the President because of his obdurate refusal to change his present policy vis-a-vis Iraq. I'd prefer something general like this, not least because it would be interesting to see how many Republicans would declare that they do, indeed, have such confidence. That does not, for example, seem to be true of McCain, at least on those days when he calls for a massive increase of troops.
 

@prof. Levinson and Lederman: now here is a proposal that can be achieved. A "non-binding" resolution of no confidence. I would be anxious to see what would ensue: could a president with approval in the low thirties and with at least half of congress against him, surivive?`
 

Bart: I have a hard time seeing either proposition being approved by this Congress...

Likewise I have a hard time seeing either AUMF2002 ("authorizing" the illegal and immoral invasion and occupation of our former ally, the sovereign nation of Iraq) or "the" AUMF (the legislative embodiment of the "war" on terror) repealed in a land where a member of the bar can say things like "I am a black and white ideologue...I believe in absolute truth..." with a straight face and think he can pass himself off thereafter as a legitimate voice. So long as the Rush's and the Gingrich's and the Rove's and the O'Reilly's have the likes of this to pander to, for that long Oceania will have its wars.
 

"Assuming as I do that the AUMF is a declaration of war, I am unaware of any provision of the Constitution granting Congress the power to withdraw such a declaration."

It would seem trivially obvious that the power to declare war and the power to declare an end to it, are two halves of the same coin. Just as the power to enact is the power to repeal.
 

Brett: It would seem trivially obvious...

This, of course, is the problem with originalism: it cannot hold itself. What you write certainly seems obvious to me. But if it isn't in the literal black-and-white words on the parchment then folks like Bart will argue that only the literal meaning of those words count. Except, of course, where such an approach thwarts some party aim.
 

Assuming as I do that the AUMF is a declaration of war

Under Section 2(c) of the War Powers Resolution, there are three very clearly defined and separate situations under which the President may introduce US troops into hostilities:

(1) a declaration of war
(2) specific statutory authorization
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Congress very clearly stated in both the AUMF and AUMF 2002 that they were "intended to constitute specific statutory authorization." There is nothing in the text of the two AUMFs about declarations of war.

In fact, in the War Powers Resolution, statutory authorization is never linked with "declaration of war" by an "and" or a "and/or." That is, whenever the two appear in the same context, they are held to be discrete, suggesting that an AUMF does not constitute a declaration of war at all.

So, even if a declaration of war were a magical category that granted the President some kind of "safe" status from a Congress that wanted to end involvement in hostilities, the magic quality of that category would clearly not apply here.
 

Quick question about funding. Could Congress defund the war by omission?

If they don't provide money for keeping it up and don't pass a continuing resolution, then the money would run out, right?

(I don't see this being an achievable or even necessarily a wise political strategy. But I'm wondering if it's legal.)
 

It would seem trivially obvious that the power to declare war and the power to declare an end to it, are two halves of the same coin.

This, or something very like it, became an issue in 1793 when Washington wanted to declare US neutrality in the war between France and England. Madison and Jefferson argued that because the Constitution gave Congress the power to declare war, only Congress had the power to declare peace (or "not war"). Hamilton, of course, took the opposite view. Washington agreed with Hamilton and issued the Neutrality Proclamation.
 

PMS_Chicago: So, even if a declaration of war were a magical category...the magic quality of that category would clearly not apply here.

I've been wanting to be better grounded on this matter for my repeal-aumf.org project. On the one hand AUMF, the original, really would seem by its literal words to grant a blank check to the President (and, mind you, that would hold true for a Democrat President if such should reach the White House before we run out of terror with which to be at war.) On the other hand your note here, and even some of the administration's own statements deny this "blank check" view. I simply haven't got far enough in my studies to address this as well as I'd like. I'd be happy for any pointers you offer.
 

Again, I'm reminded of Lee Hamilton's retort to Hilary Clinton's preposterous question, "What can congress do?" "Congress has been complicit," Hamilton responded, which seems obvious, including the fact Hilary have authorized every step of Iraq along with everyone else. What is it about Congress, especially among the Democrats, that do not know their a co-equal branch of government, that they control the purse, and that they can press to action? Et tu, Reid? No wonder Americans hesitated returning Democrats to power, until it got so bad they had no other choice. But even with power, Democrats seem clueless what it is to be used for. Or is it that they too want to forget they enabled all along the way?
 

The House of Representatives has the sole function in initiating spending. It can, if it so chooses, appropriate funds that are specifically earmarked to pay the expenses of withdrawing forces from Iraq and decline to appropriate funds for the continuation of forces in place in Iraq. Such a bill would appropriate funds to support the armed forces operations outside of Iraq. A presidential veto of such a bill would result in no appropriation for the military. I agree with those who have doubts about the ability of the Congress to decide whether to withdraw from Iraq. What is beyond doubt is the ability of the House of Representatives to decide not to pay for the continutation of forces in Iraq.
 

If the Congress is going to try to force the President to do something, it seems to me that it would be more direct and effective for the House of Representatives to force the President to hire the department heads that would carry out the policies and actions it wants. This would not require a law or resolution,just the threat of no funding for the positions, and there would be nothing for the President to veto.
 

For all of you saying the Dems should send Bush a message, well despite the unpopularity of Bush's approach, the Dems approach is even more unpopular .

http://www.usatoday.com/printedition/news/20061212/1a_lede12.art.htm
 

Brett said...

BD: "Assuming as I do that the AUMF is a declaration of war, I am unaware of any provision of the Constitution granting Congress the power to withdraw such a declaration."

It would seem trivially obvious that the power to declare war and the power to declare an end to it, are two halves of the same coin. Just as the power to enact is the power to repeal.


Is it?

The Constitution calls upon Congress to give initial approval for various Presidential actions like appointing department heads, judges and ambassadors, as well as ratifying treaties negotiated by the President. However, Congress does not have the power to withdraw these.
 

PMS_Chicago said...

BD: Assuming as I do that the AUMF is a declaration of war...

Under Section 2(c) of the War Powers Resolution, there are three very clearly defined and separate situations under which the President may introduce US troops into hostilities:

(1) a declaration of war
(2) specific statutory authorization
(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Congress very clearly stated in both the AUMF and AUMF 2002 that they were "intended to constitute specific statutory authorization." There is nothing in the text of the two AUMFs about declarations of war.


The War Powers Act is and always has been unconstitutional nonsense. The Constitution grants one power to Congress to start a war - a declaration of war. Either the AUMF is a declaration of war or it is an unconstitutional resolution with no legal effect.
 

The only real option Congress has is to refuse to fund Iraq war operations. However, I could not think of a better gift the Dems could grant the GOP than refusing to fund the troops in combat.

Once again, I could only fantasize that the Dems would unite and do something this stupid. 2008 would be a landslide.
 

Bart: Either the AUMF is a declaration of war or it is an unconstitutional resolution with no legal effect.

You really just can't resist them either-or setups, can you? You know it's bogus, but you just can't resist seeing if folks will swallow your black-and-white bait. Pity.

Bart: 2008 would be a landslide.

And this is simple trolling, vandalism with the thinnest veneer of manners. What was the point of all our fine fence mending if in the end you are just going to continue playing this kind of game?
 

For all of you saying the Dems should send Bush a message, well despite the unpopularity of Bush's approach, the Dems approach is even more unpopular

I can kinda sorta see how you got that conclusion from the USA Today poll, but not really. While it's true that the level of trust in "Democratic congressional leaders" was even lower than in Bush, 55% want most troops withdrawn within a year. While I'm not sure there is a unified "Democratic" position regarding this, that withdrawal schedule is probably close to it.

Then there's today's LA Times poll. According to it, the public had more trust in "Dems" (note the contrast with USA Today's "Dem congressional leaders") by 45-34. A similar 52% want a withdrawal schedule and only 12% favored more troops, which seems to be the direction the Administration is likely to go. I might note that 12% is so low that even issues like gay marriage do better.
 

robert link said...

Bart: Either the AUMF is a declaration of war or it is an unconstitutional resolution with no legal effect.

You really just can't resist them either-or setups, can you? You know it's bogus, but you just can't resist seeing if folks will swallow your black-and-white bait. Pity.


My friend, the Constitution is quite clear on this point. Do you see any provision granting Congress the authority to enact an AUMF?

Bart: 2008 would be a landslide.

And this is simple trolling, vandalism with the thinnest veneer of manners. What was the point of all our fine fence mending if in the end you are just going to continue playing this kind of game?


Robert, the good professor speculated openly about whether the Dems would seek to pass some sort of enactment to stop the war. I am merely commenting on how highly unlikely this possibility is because the Dems are not dumb enough to commit political suicide.

Do you disagree?
 

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