Balkinization  

Tuesday, January 16, 2007

An Audacious Claim About Our "Constitutional Culture"

Sandy Levinson

In today's Washington Post, David Rivkin and Lee Casey make the rather astonishing statement "that efforts by some congressional Democrats to chastise the president through a resolution of "no confidence" in his Iraq policy have no place in our constitutional culture." Readers of Balkinization are more than aware of my perhaps tiresome insistence that it is a severe defect in our constitutional system that there is no way of removing an incompetent (even if he/she is not a "criminal") president through a no-confidence vote. (Incidentally, there are 735 days remaining in George W. Bush's term, for those who are interested in the countdown.)

It would be impossible to take issue with Rivkin and Casey, described as Washington lawyers who worked in the Reagan and George HW Bush administrations, if they were saying simply that we are are indeed stuck with an incompetent in a way that we are not stuck, at least as a formal matter, with a criminal. (I would not, of course, expect them to agree with my assessment of George W. Bush, though these days one never knows what Republicans are saying to each other privately.) But their statement goes far beyond this truism about our system. They seem to be saying that Congress cannot even speak as a collective body and declare its loss of confidence in the leadership being shown by the Chief Executive/Commander in Chief.

I am not aware that there are limits on Congress's power to speak through passing resolutions that do not, after all, have the force of law. Indeed, I remember very vividly being in China in 1987 and trying to explain to justifiably confused Chinese scholars how it was that Congress could pass a resolution denouncing Chinese oppression in Tibet even as the official spokesman for the State Department explained that "the United States" viewed it as an internal matter of the People's Republic of China. I explained that it is simply a category mistake to view the US as having a unitary "government" in the way that Her Majesty has such a government. It may be the case that, when push comes to shove, the President is indeed "the Decider" (as to how to cast our vote in the UN, for instance), but this doesn't stop Congress from weighing in, for good or for ill, with its own views on matters of foreign policy. Thus I fail to see any serious argument against the propriety of Congress passing a resolution manifesting its loss of confidence in George W. Bush. To say that it has "no place in our constitutional culture" is just another power play by those who believe in an overweening Executive, and one might well believe that it is just such Executive supremacists who are trying to transform our constitutional culture moreso than members of Congress who are suggesting the relatively mild step of a resolution of no confidence.

Comments:

"Shut up and sing!" -- TDC.

Cheers,
 

I don't think the authors of this piece are suggesting that the resolution of "no confidence" would be unconstitutional, only that it would be merely symbolic and perhaps unhelpful. The piece is not particularly well written, but I think they are making the, I think, obvious point that the idea of a "no confidence" resolution is a bit silly when Congress has the ability to take concrete action with respect to the war.
 

Congress has, on at least one occasion, gone well beyond a resolution of disapproval and actually censured a President. Three years later, the censure resolution was itself expunged.
 

@Psittakos: If it was badly written as you pose and they let in phrase like these:

"Just as there are constraints on the president's constitutional authority as commander in chief, there are limits on Congress's ability to direct presidential action."

then maybe, the whole op-ed shouldn't be taken seriously. The tenure of the article is that in the US's constiutional system, there are certain constitutional limits. Not just practical limits.
 

Anne,
I agree, I think. The piece is worded so as to suggest that the resolution might somehow be a constitutionally suspect attempt to effectively usurp executive authority. I think that's a pretty silly argument, and the authors offer mostly vague throat-clearing language on that point.

I'm not a fan of the vote of "no confidence" because I think it is a way for members of Congress to pretend to do something about the war without appropriately assuming responsibility.
 

Rivkin and Casey do not limit themselves to comments about non-binding resolutions. Rather, they also assert, without visible foundation, that Congress cannot effect any limits on defense appropriations short of, for example, cutting off all funds for future operations in Iraq. "Under our constitutional system, however, the power to cut off funding does not imply the authority to effect lesser restrictions, such as establishing benchmarks or other conditions on the president's direction of the war," they claim.

In support, the authors proceed to erect and defeat a strawman by citing such cases as United States v. Lovett, which held that an uncocnstitutional bill of attainder attached to an appropriations measure is still an unconstitutional bill of attainder. Obviously, no such situation obtains in the measures that have been discussed lately with regard to Iraq deployments.

The op-ed may be correct that courts will not define the limits of such powers, but it would be useful to look at historical precedents. This Congressional Research Service report, Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments lists several examples, including in-country troop ceilings.

Rivkin and Casey do not claim to speak for the current administration, but the op-ed can be considered a surrogate. It follows on President Bush's breathtaking assertion in the weekend 60 Minutes interview that he has authority to ignore congressional attempts to prevent the Iraq troop surge. If this is as good as the lawyering gets in support of unilateral presidental authority, we need not take it very seriously.
 

"735 days remaining in George W. Bush"--I don't think leaving office will kill him, will it?
 

Rather, they also assert, without visible foundation, that Congress cannot effect any limits on defense appropriations short of, for example, cutting off all funds for future operations in Iraq. "Under our constitutional system, however, the power to cut off funding does not imply the authority to effect lesser restrictions, such as establishing benchmarks or other conditions on the president's direction of the war," they claim.

Advocates of the "unitary executive" theory in general cannot deny that Congress has the ultimate power of the purse strings, so they do their utmost to make it so blunt an instrument as to be practically useless. Congress, by defunding, can completely destroy whatever agency the President is using, or they can give him unbridled discretion in its use. By denying any middle ground of regulation, they seek to give Congress an intolerable pair of alternatives that ultimately leaves no practical choice but to yield to the President.
 

Perhaps the authors of the article would have been more accurate if they said that a Congressional resolution of "no confidence" in the President would serve no purpose in our constitutional system. However, this is a minor sidebar in an otherwise good summary of the scope and limits of the war powers of the Congress and President.

I would commend this article to those who have any questions as to those war powers.
 

JaO said...

In support, the authors proceed to erect and defeat a strawman by citing such cases as United States v. Lovett, which held that an uncocnstitutional bill of attainder attached to an appropriations measure is still an unconstitutional bill of attainder. Obviously, no such situation obtains in the measures that have been discussed lately with regard to Iraq deployments.

The authors were citing to those cases for the general proposition that Congress may not attach unconstitutional conditions onto spending bills. The authors complete their argument in the remainder of the paragraph:

As explained by Professor Walter Dellinger -- President Bill Clinton's chief constitutional lawyer at the Justice Department -- "[b]road as Congress' spending power undoubtedly is, it is clear that Congress may not deploy it to accomplish unconstitutional ends." This includes restricting the president's authority as commander in chief to direct the movement of U.S. armed forces. In that regard, Dellinger quoted Justice Robert Jackson -- who said while serving as President Franklin Roosevelt's attorney general: "The President's responsibility as Commander-in-Chief embraces the authority to command and direct the armed forces in their immediate movements and operations, designed to protect the security and effectuate the defense of the United States."

The only thing the authors left out of this argument is to point out that no provision in Article I grants Congress concurrent power to direct the movement and operations of troops.

I do not see the problem here. Both branches have plenary powers which are not shared with the other branches. Most principled conservatives, including these authors, do not claim that the President may exercise the Article I power of the purse to raise money for wars by decree. How can principled liberals claim the Congress can exercise the Article II CiC power to direct the movements of troops?

The op-ed may be correct that courts will not define the limits of such powers, but it would be useful to look at historical precedents. This Congressional Research Service report, Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments lists several examples, including in-country troop ceilings.

If you work at it, you can come up with a much longer list of additional examples of unconstitutional legislation. The fact that Congress enacted something does not make it constitutional.
 

Sandy: The Rivkin and Casey article is another example of the kind of argument that ultimately suggests that we should have a monarchy:

1) They start the article with the statement that "Just as there are constraints on the president's constitutional authority as commander in chief, there are limits on Congress's ability to direct presidential action." They do not say what the contraints on the president's authority are, and the gist of their article is that there are no constraints.

2) They say that the constitution "features" two coordinate political branches, "with unique responsibilities and independent legitimacies." First of all, this flies in the face of an extensive literature documenting the fact that the three branches clearly poach on each other's supposed functions, none more so than the executive, and that the government could not function if this were not so.

3) In just the next paragraph of their article, they point out that Congress can affect the president's actions only if they have a veto proof majority in both houses. The converse of this is that the president needs only a minority of one house to have his way. So much for coordinate powers. In fact the president is the dominant power in the government as it is now, and this will remain so, no matter who holds the office.

4) Their argument that the "legislature cannot attach conditions to federal spending that would destroy the president's authority", carried to its logical conclusion would suggest that Congress can only appropriate money, with no conditions on how it is to be spent. It could not direct that money be spent on the navy rather than the army, or even commerce rather than defense. To do so would restrict the president's authority.

These arguments, again, lead to the conclusion that only a monarchy is possible. They are representative of the kind of aggrandizement of presidential power that has been going on since the founding of the republic, as documented by Corwin and Schlesinger. My only question is when will the "people", or more particularly the Congress, acquire the will to make the changes in the government necessary to stop this progression-or is it too late?

GYL
 

@Psittakos: same here. Although, if they are willing to take the next step, non-binding resolutions might be a good first step to get GOP votes for both.
 

A crafty Bart would not "recommend" articles like this. Poison pill!

Seriously, it is sometimes hard to bridge the gap when the other side promotes views that seem so glaringly wrong. Or, wearing colored glasses. For instance:

"even if one assumes that, as critics allege, the November election results were a call for disengaging from Iraq"

This sets up a bit of a strawman ("disengaging") but are we seriously to assume that it is in effect hard to believe ("even if" = "not that we should take it seriously") the election strongly sent a message in part that the current policy re Iraq is seriously problematic?

Likewise, "parlimentary government" is not quite what comes to mind when Congress submits a resolution disagreeing with executive policy. Such hyperbole is hard to take seriously.

Is this the best "contra" position they can find? It's like those lib sorts O'Reilly gets that are as scary as the d.a. in old Perry Mason shows.

The suggestions they could use the power of the purse in various respects suggests the authors don't even like the system we have now. BTW, love that TDC reference.
 

"could not use power of purse"
 

Professor, as you know, they don't have to be factually correct to be of service to the administration. It is enough that they are printed where the unwary will read their nonsense---and swallow it whole.
 

Requoting the words of the Rivkin-Casey essay, as Bart does above, does nothing to add to its authority. Nor does it cure the obvious fallacy of the authors, which is that they assume their own conclusion.

They postulate, on their own authority, that it would be unconstitutional for Congress to enact certain limits, then cite other authorites for the principle that it is wrong in general for Congress to enact provisions in appropriations measures that happen to be unconstitutional in their own right.

True, just because Congress enacts some law does not establish its constitutionality. But just because a president gives some order does not make it constitutional, either. In case of conflict, some separation-of-powers questions may be adjudicated, and some may not. This one may be one of the latter. If so, then extra-judicial precedents of history mean something more. In any event, the authors' pooh-poohing of a non-binding resolution doesn't really matter much.

Perhaps this president and Congress are heading for a real confrontation over war powers. The Rivkin-Casey surrogate piece was a symbolic move in that direction. Bush's remarks on 60 Minutes were another.
 

Bart:

Both branches have plenary powers which are not shared with the other branches. Most principled conservatives, including these authors, do not claim that the President may exercise the Article I power of the purse to raise money for wars by decree. How can principled liberals claim the Congress can exercise the Article II CiC power to direct the movements of troops? . . . The fact that Congress enacted something does not make it constitutional.

Professor Lederman and Humble Law Student discussed this subject quite recently. As both made clear, this is an extremely unsettled area of law. There are very few cases on just how far Congress may constitutionally go in setting limits on the President's war-making power.

What this means is that Congress (and its champions) assert one set of prerogative while the President (and his champions) assert a conflicting set and no one knows where the line between them actually is.

You are a champion of Presidential authority in this field. Well, there is no settled law that you are wrong. Nor is there any settled law that you are right. You are simply asserting your own opinion which has a good a chance of being right as anyone else's. But is is misleading to act as if your opinion is settled law, because it is nothing of the kind.
 

JaO said...

Perhaps this president and Congress are heading for a real confrontation over war powers.

I doubt it. Bush already started the deployment with current funds and the Dems have no will to cut off funding for the troops in the field.

The Dems in both chambers will hold hearings, the House may have a vote on a resolution wagging their finger at Bush and the similar resolution will be filibustered in the Senate.

There will be no alternate plan to win the war, there will be no vote to defund the war, only whining and flip flopping with the intent to destroy support for the troops overseas in harm's way.

Pathetic. Hardly the kind of Profile in Courage Kennedy wrote about in a far different Dem party.
 

Rivkin and Casey lose the chutzpah award to Attorney General Gonzales. The AP reports the following:

"Attorney General Alberto Gonzales on Tuesday blamed delays in trying terror detainees at Guantanamo Bay on legal challenges filed by their lawyers.

Those trials may start by this summer, Gonzales told Associated Press reporters and editors. He said rules for the military commission are being sent up to Capitol Hill this week.

"It's not for lack of trying," Gonzales said, when asked about the legal fate of detainees who have been held at the military facility, in some cases for five years. "We are challenged very step of the way."

"We are trying as hard as we can to bring these individuals to justice," he said."
 

Enlightened Layperson said...

Professor Lederman and Humble Law Student discussed this subject quite recently. As both made clear, this is an extremely unsettled area of law. There are very few cases on just how far Congress may constitutionally go in setting limits on the President's war-making power.

The absence of case law for ludicrous positions does not render the law unsettled.

The paucity of case law holding that the President may not exercise Congress' Article I power of the purse to raise money for wars by decree hardly means that the law is unsettled in the area. Article I grants Congress plenary power in this area. The law is settled by the text of the Constitution.

Similarly, the paucity of case law holding that Congress may not exercise the President's Article II CiC power to order the movement and operations of troops through legislation hardly means the law is unsettled in this area. Article II grants the President plenary power to command the movement and operations of our nation's troops. The law is settled by the text of the Constitution.

The Constitution affirmatively enumerates the powers each branch may exercise. Each branch is limited to those enumerated powers.

In order to consider the law unsettled in the area of operational command over troop movements you have to disregard Article II delegation of CiC power to the President and believe that Congress may exercise any power it pleases until told to stop by the courts.

I'm sorry, but this approach is absurd.
 

Mark:

What is absurd about Gonzales' contention?

The legality of the executive's rules for trying the detainees for war crimes before the courts for a couple years before the Supremes held that the UCMJ applied to these captures. Then nearly another year passed before Congress passed the MCA to set new rules for the trials of illegal enemy combatants.

If the military had tried any of these combatants under the previous rules, they would have had to be retried under the new rules.

What is the hurry? These detainees are in for the duration of the war.
 

"Bart" DePalma says:

Similarly, the paucity of case law holding that Congress may not exercise the President's Article II CiC power to order the movement and operations of troops through legislation hardly means the law is unsettled in this area. Article II grants the President plenary power to command the movement and operations of our nation's troops. The law is settled by the text of the Constitution.

"Bart"'s back to his favourite: "reframing" the issue. With the FISA law, he kept insisting that Congress was trying to "direct" the conduct of intelligence gathering, insinuating that they were writing bills that said "Wiretap Ms. 'A', but not Mr. 'B'" (not true), when in fact they just said: "When you want to wiretap anyone, "A", "B", or "Z", here's the procedures you have to follow." Congress can indeed set down rules (procedures) for the "government and regulation of the land and naval forces" and impinge of the preznit's CinC powers in doing so (I note in passing that the NSA is a military organisation whose director must be a military officer). Similarly with this bafflegab about "command[ing] the movement and operations of our nation's troops"; Congress hasn't started showing a propensity to order field commanders around, nor do they show any signs of wanting to do so, but Congress certainly can say that no military troops shall be sent to invade country "X", and precedent compiled by the CRS cited by a couple posters here indicates that Congress has even placed limits on the number of troops that may be deployed to a specific place and the length of their stay, restrictions that have not ever been challenged in court. Congress could, should it choose, order that troops wear bright orange prison garb at all times while in service, or even direct that the troops be ordered to fight armed only with soup spoons. There is clearly a joint power between Congress and the preznit as to the "conduct" of military affairs, and the limits of each branch's powers, particularly when in conflict with the other branch, really hasn't been tested in the past; in most cases, presumably because there's little difference of opinion between the two as to what should be done. In the few cases where there has been a difference of opinion, "Bart" will be hard pressed to find examples of the executive prevailing; the Congressional limits on deployments and timelines have been (for the most part) respected and never (TTBOMK) challenged by the executive in court. "Bart"'s default rule that "the preznit wins" is the least likely outcome on the evidence we have.

"Bart"'s single 'argument' seems to be that unless the preznit is given unfettered discretion, "bad things" can happen, and thus a court shouldn't allow such; this 'argument' is the only way to proceed from the mealymouthed "the preznit is CinC" to "the preznit has plenary and absolute authority on all things military". It certainly isn't there in any "plain language"; the claim for absolute authority must derive from some notion of intrinsic necessity. Clearly, this is wrong. If Congress can refuse to declare a war even when one is clearly 'necessary' (and I think that "Bart" has to admit that Congress does have that power), there's no reason to say that necessity requires that Congress stay out of lesser restrictions that impinge less on the preznit's CinC duties.

As I and others have repeatedly said, the lines have not been drawn, and are still quite fluid. One thing that "Bart" ought to be wary of, if he actually thinks a step or two ahead (a doubtful proposition), is that for Dubya to provoke a showdown with Congress on the wildly unpopular Iraq war and the handling of such might not be too auspicious for the future powers of the preznitcy: Any decision may be tempered by the perceived performance of the Dubya preznitcy and the outcome -- using the Dubya preznitcy as the low water mark for how much trust should be given to one person for such affairs -- may not be to "Bart"'s liking.

Cheers,
 

Bart: What is the hurry? These detainees are in for the duration of the war.

Bart (commenting on the fate of persons held in Gitmo): Given this will most likely be a multi generational conflict like the Cold War, th[ese] detention[s] [are] effectively a life sentence. Thus, the only reason to go through a trial is to impose a death sentence.

Bart (commenting on the lack of protections for the innocent in the MCA: My family has my birth certificate and can personally testify as to my citizenship.

You often seem to benefit, after a fashion, from the slightly skewed attention span afforded by this medium; it allows you to dodge hard questions. Sadly for you there's always cut-and-paste of your inanities to remind old hands and warn new readers exactly what kind of thinker we're dealing with here.

Here's a question you never have answered: Which words in the text of MCA preclude it being our own Nacht und Nebel? You spent quite a bit of time fighting other fights but somehow never got around to answering this. Could it be because the answer is, "Nothing"? Woudn't an honest man be able to say so?
 

This thread is getting old, but just for the record, Walter Dellinger emphatically contradicts the spin put on his 1996 OLC memorandum above.
 

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