In (Electoral) Dreams Begin Responsibilities

Marty Lederman

Matt Yglesias and Ann Althouse "vlog" about the irony of the current legislative murk: Although the November elections were a referendum on the Iraq War, and although 45 percent of the electorate believes that "of all the problems facing the country today," the Iraq war is the one Congress should "concentrate on first" -- the economy and jobs collectively is second with seven percent support -- the Democratic majorities actually chosen in that referendum are now unwilling (indeed, some among them who should know better profess to be unable!) to do anything about that war other than to cajole and plead with the President and to hope that the Republican minority convinces the President to change course. (In fairness, there are many Democrats, such as Senator Kennedy (introducing legislation this morning) who are ready to step to the plate. But there's apparently a great deal of hand-wringing in certain parts of the caucus.)

As Yglesias notes, perhaps the best possible political and policy outcome for the Democrats would, indeed, be for Bush to de-escalate the war at the behest of Republicans, so that once the war is ended the Republicans can't thereafter carp, Vietnam-revisionism-like, that "We could have actually won the war if only those Democrats hadn't tied our hands!"

Fair enough.

But even if Yglesias is correct about the best of all possible worlds, and even if some Republicans begin pleading with Bush to reverse course, there's no reason to think this President would be at all inclined to listen, let alone to acknowledge the error of his ways. And if that's so, then, as Matt says, "there's something ghoulish about agreeing to appropriate money to finance a military occupation that you think should be ended and that you think is futile."

No, of course that doesn't mean that Congress should propse a bill cutting off all appropriations for the conflict immediately. The commonly-heard anxiety about Dems being accused of "abandoning our troops in Iraq" is grossly overstated: No one is remotely suggesting any statutory proposals that would strip troops on the ground of whatever is necessary for their safety and protection.

But Congress could simply vote for a law requiring withdrawals or redeployments on a particular timetable. (In 1973, for instance, Congress enacted a law effectively requiring withdrawal from Cambodia and Vietnam by a date certain (August 15, 1973). See Pub. L. No. 93-52, 87 Stat. 134 ("Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.") President Nixon didn't simply "abandon" those troops without authorization or funding -- he complied with the deadline, after having vetoed a bill requiring withdrawal six weeks earlier.)

Or, as at least one member of Congress will propose this morning, Congress could vote for a bill refusing appropriations for increases in troop levels in Iraq.

Will Bush veto such a bill? Perhaps (depending on what else is in it). Will he ignore it if it is enacted? Well, when it comes to respect for statutory law, let's just say that Bush is no Richard Nixon. Could the courts enforce such a law if Bush refuses to enforce it by spending funds that are not appropriated? Yglesias and Althouse seem to assume that the Supreme Court would not intervene. I'm not so sure -- in any event, the Court surely could intervene.

But even if it would be difficult to enforce such a law does not mean it shouldn't be enacted. A situation in which the President must openly violate the law, and spend unappropriated funds, in order send more troops to Iraq, wouldn't be such a bad thing as opposed to the alternative, at least in terms of political accountability. And it certainly is no justification for Congress to abandon its constitutional role.

Indeed, it's important for Congress to step up to the plate here not only because the practical stakes are so high, but also precisely because the President is so dismissive of ordinary checks and balances. It's hard to improve here on Josh Marshall's comments this morning:

The way this is "supposed" to work is that when the president takes a dramatic new direction like this he consults with Congress. That way, some relative range of agreement can be worked out through consultation. National unity is great. Or at least that's the theory.

But here we have a case where the president's party has just been thrown out of power in Congress largely, though not exclusively, because the public is fed up with the president's lies and failures abroad. (Indeed, at this point, what else does the Republican party stand for but corruption at home and failure abroad? Small government? Please.) The public now believes the war was a mistake. Decisive numbers believe we should start the process of leaving Iraq. And the public is overwhelmingly against sending more troops to the country. The country's foreign policy establishment (much derided, yes, but look at the results) is also overwhelmingly against escalation.

And yet, with all this, the president has ignored the Congress, not consulted the 110th Congress in any real way, has ignored the now longstanding views of the majority of the country's citizens and wants to plow ahead with an expansion of his own failed and overwhelmingly repudiated policy. The need for Congress to assert itself in such a case transcends the particulars of Iraq policy. It's important to confirm the democratic character of the state itself. The president is not a king. He is not a Stuart. And one more Hail Mary pass for George W. Bush's legacy just isn't a good enough reason for losing more American lives, treasure and prestige.

Posted 4:59 AM by Marty Lederman [link]