Balkinization  

Monday, January 08, 2007

Kinkopf on Congress's War Powers

Marty Lederman

In my earlier posts, I was remiss in neglecting to link to this very fine and helpful analysis written by my friend and former OLC colleague Neil Kinkopf on Congress's power to enact a law to restrict a troop escalation, which Neil posted on Friday but which I only just now discovered. The wish-I-woulda-said-that title of Neil's post: "Congress as Surge Protector."

Comments:

Exactly what some of us were looking for; thanks, Prof.
 

Yes and no. Kinkopf argues that where Congress and the President have concurrent powers, the President must abide by Congress' rules. But he doesn't make clear why the powers concur in case of a surge. This is the point where I (and Hublelawstudent, I presume) are a bit sceptical.
 

Quoting Kinkopf: The Supreme Court has been clear and unambiguous. When Congress, acting in the vast areas of overlapping power, tells the President “no,” the President must comply. Thus, Congress may limit the scope of the present Iraq War by either of two mechanisms. First, it may directly define limits on the scope of that war—and forbid the President from exceeding these limits—such as by imposing a ceiling on the number of troops assigned to that conflict. Second, it may achieve the same objective by enacting appropriations riders that limit the use of appropriated funds. Indeed, the reason that the Constitution limits military appropriations to two years is to prevent Congress from abdicating its responsibility to oversee ongoing military engagements.

...

In the naval war with France, Congress had authorized the U.S. navy to intercept vessels bound to, but not from, French ports.

...

Most notably, in Little v. Barreme, Chief Justice Marshall held that the President’s war powers are defined by statute and may not exceed statutory limits.

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The Supreme Court has continued to adhere to this view of the war power. In Youngstown Sheet & Tube Co. v. Sawyer (the famous Steel Seizure case), the Supreme Court struck down President Truman’s order that the nation’s steel mills continue operating in order to keep the troops in the Korean War armed. Justice Jackson’s famous concurring opinion (which the Supreme Court has since held to set forth the proper view of presidential power) emphasized that the Constitution does not set forth exclusive power, but overlapping or shared power. Where Congress and the President share power, as in the area of war power, the President is bound to comply with the statutes that Congress enacts.

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Most recently, the Supreme Court has applied Justice Jackson’s framework to resolve challenges to President Bush’s assertions of commander-in-chief power. In both Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006), the Supreme Court rejected the President’s assertion of unilateral authority to conduct military operations (in those cases dealing specifically with the detention and treatment of enemy combatants), holding instead that the President must comply with applicable statutory limits as well as applicable international law.
(emphasis added, selections presented out of original order.)

@anne: I do not understand the source of your skepticism. Kinkopf seems to be saying clearly that Congress can pass statutory limits. Professor Lederman's analysis still seems on point too.
 

"Kustice Jackson’s famous concurring opinion (which the Supreme Court has since held to set forth the proper view of presidential power) emphasized that the Constitution does not set forth exclusive power, but overlapping or shared power. Where Congress and the President share power, as in the area of war power, the President is bound to comply with the statutes that Congress enacts"

It seems to me that it is overly broad to say that Congress and the President share the power on the military. I'd say Congress can set certain limits, but the president is commander in chief. The CIC decides on deployments etc. while Congress decides on budgets and outer limits of military power. In this view there is no overlap. No overlap, no Youngstown.
 

The Constitution grants Congress extensive war powers – so extensive, in fact, that Chief Justice John Marshall once wrote that “The whole powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides ….” (Talbot v. Seeman (1801).)

When penning that statement, Marshall was deciding whether Congress had authorized naval action against French shipping. In doing so, Marshall was merely observing that the power of declaring war lay with Congress and not the President.

Marshall was most definitely not claiming that the Constitution's Article I budget or any other provisions grant Congress the power to command troop deployment levels or mandate troop objectives in a war zone.

Indeed, Congress never attempted to arrogate these command powers until nearly 200 years later during Vietnam. Perhaps, it never occurred to previous Congresses to order our troops to withdraw and surrender a battlefield to the enemy.
 

Bart: Perhaps, it never occurred to previous Congresses to order our troops to withdraw and surrender a battlefield to the enemy.

Indeed. It seems more than merely likely they never contemplated our troops being used for such illegal and immoral invasions and occupations, much less of former allies. Hence they failed to provide for withdrawal from such ignoble situations. But hey, it's *your* revered Elephants who put our troops in this ugly spot. Want honor for our troops? Use them honorably. Meanwhile the only honorable thing to do in Iraq is get the hell out and send lots of money to help fix what we've illegally and immorally screwed up. It'll never happen, of course, but it's the honorable choice. "You broke it, you bought it" doesn't apply to sovereign nations. You _have_ heard of sovereignty, haven't you?

What's that you say? "Islamic fascists, Islamic fascists!" What say you stick to your Ann Coulter and the rest of those black-and-white ideologues, eh?
 

It seems more than merely likely they never contemplated our troops being used for such illegal and immoral invasions and occupations, much less of former allies. Hence they failed to provide for withdrawal from such ignoble situations.

This can't be true. Failed wars of choice are commonplace in human history, especially Greco-Roman history, of which the Founders were quite well aware.
 

Bart: Perhaps, it never occurred to previous Congresses to order our troops to withdraw and surrender a battlefield to the enemy.

Mort: Failed wars of choice are commonplace in human history, especially Greco-Roman history, of which the Founders were quite well aware.

Thanks for the assist. Figure "failed wars of choice" is what we've got in Iraq, that "failed wars of choice" equates with "illegal and immoral invasions and occupations"? Nice to be on the same page for a change.
 

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