The problem with your position, Marty, which is consistent with Richard Epstein's, is that it leads to the conclusion that Congress, by overriding the President's veto, can force the President to go to war with soldiers whose only weapons are plastic spoons. That is crazy.
 

@mortime brezny: that hardly an argument against prof. Lederman. Congress can now defund the war already. Than it would be up to the CI C to decide whether or not to send these soliders in harms way using plastic spoons.

Would you care to respond to the merits? Lederman argued that congress can limit wars in certain ways. Are you or are you not disputing the fact that MCA, UCMJ, the War Crimes Act etc. regulate the commander in chief's authority? If so, the discussion should be about whether a topic such as troop levels and duration is one of the topic that can be regulated by the Congress.
 

Mortimer Brezny writes: "The problem with your position, Marty, which is consistent with Richard Epstein's, is that it leads to the conclusion that Congress, by overriding the President's veto, can force the President to go to war with soldiers whose only weapons are plastic spoons. That is crazy."

That is correct. The president is crazy.
 

The problem of mortimer position, is that he has none (or hasn't expressed any of his own so far - damn, I hate being a lawyer and having to add qualifications).
 

Professor Lederman:

Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not...

The Constitution makes the President the sole executive and the commander in chief of the armed forces. In contrast, Congress is given certain enumerated powers over foreign policy and the military. Courts have interpreted this structure to mean that the Constitution grants the President all power over foreign policy except for that expressly granted to Congress in Article I.

No provision of Article I grants Congress the CiC power of operational control over the military. Congress is empowered to start wars as well as to raise and fund the military, set rules for the discipline of service members, and set rules for the treatment of captures. That is it.

Thus, if Congress wants to stop a war, they have to either defund or disband the troops fighting the war.

Deciding the number of troops to deploy in a campaign or deciding what those troops will do when in theater are decidedly command decisions, not budgetary decisions. If Congress attempts to assume these kinds of command roles, they are acting beyond their Article I powers.

The equivalent of Congress setting a budgetary ceiling on the number of troops Mr. Bush can deploy into Iraq would be Congress telling FDR that he could only use 10,000 troops to invade Normandy because more troops would result in more targets for the enemy.

Does anyone here believe the Supreme Court would interpret the Constitution to allow Congress such and arrogation of power? Id so, on what grounds?
 

Jao,

Good find. But, did anyone say that Congress couldn't use it power of the purse? I don't think so.
 

@HLS: This is the same issue as the previous thread, right? We need to know whether or not Congress has the power to deny the President his desired escalation of forces, other than a complete de-funding. Have we found a clear answer from a reputable source? Well, yeah, Professor Lederman says Congress can, Senator Biden says Congress can't. I'd be willing to assume the Professor is correct technically and the Senator is correct politically. This *is* what you were asking earlier, right? Have you found an answer which makes sense to you yet?

I'm currently of the mind that since all the authorization is essentially statutory, falling outside the Constitutional War Powers clauses, that statutory restrictions should be fair game. It's not like the c-in-c is fighting a Constitutionally declared war, so it seems to me much of this argument is off base. (But I'd be a darned sight happier with a better authority and references than my own muddled thinking. ;)
 

Anne,

It seems to be a verbal tic of yours to claim that someone isn't arguing on the merits. You've done that twice to me here. Let me respond to both of those childish snipes now.

The reductio ad absurdum is a method of argumentation in law school. Marty Lederman is a law professor who has proposed a method of interpreting the Constitution that yields absurd results like that Congress can force the President to go to war armed only with plastic spoons. Given that there are other methods of interpreting the Constitution, some of which do not produce absurd results (or that one), why should any reasonable person choose Prof. Lederman's method of interpreting the Constitution over any of those reasonable alternatives?

As for Sandy Levinson hawking his book, which is about our structural Constitution impeding democracy, my response was as on-point and as substantive as can be: I argued that, to the contrary, our structural Constitution empowers democracy: Congress can cut the funding, or deauthorize the war, or impeach executive branch officials, or hold hearings, and Democrats will be starting hearings soon. Thus, there is no substance to Prof. Levinson's alarums. He's just hawking his book.

Lastly, no one need set out his own theory of adjudication and publish it in order to make these criticisms, for these criticisms to be valid, or for these criticisms to be sound. For all your talk about others failing to engage with merits, you fail to engage with basic literacy and logic.
 

HLS: did anyone say that Congress couldn't use it power of the purse? I don't think so.

Hold up there, pard'nuh. Jao claims to have provided exactly that which you asked for earlier...evidence that Congress can set limits other than by it's power of the purse. Please acknowledge this accordingly, by either accepting that Jao has provided what you asked for or by showing how what Jao provided fails to fit the bill. Fair?
 

Okay, let me pick on a few parts of the professor's post.

He writes, "Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not -- this wouldn't be that.
- Two Points
1. It is very illuminating that Lederman mentions the lack of a prohibition in the Constitution of Congressional micromanagement of a war. Basic con law question. Does Congress get all powers NOT prohibited to it by the Constitution? No. Maybe Lederman thinks the N & P clause or something else allows Congress to micromanage a war -- I don't know. But it is very interesting nonetheless.
2. Since, there is Constitutional prohibition on Congressional micromanagement of war, I ask, "Could Congress have stipulated that the President could not have used Big Red One (1st Infantry Division) in the assault on Normandy. The professor's comments imply the answer is yes. Very troublesome.


He further writes, "There would be no congressional officials here overseeing the President's discretionary responsibilities..."
- Well, that statement is meaningless because he has already defined away most of what would be considered part of the President's "discretionary responsibilities" regarding the conduct of war.


- All of the current statutory limitations that the professor cites do not concern the actual placement and disposition of troops on the field/theatre of war. His proposal may extend a logic that can be read into these previous statutes but these current statutes by no means compel the conclusion that his proposal would be Constitutional.

- The professor is arguing that since this conflict is war by statute, then Congress as such can determine how it is run through statutes. (I assume that the professor would find his proposal to be unconstitutional if Congress had declared war, instead of passing the AUMF.) For some of us, this distinction doesn't make much of a difference in regards to the President's power as C-in-C in regards to the conflit. For the professor, it means that since the use of force was granted by statute instead of by a declaration of war, Congress then can mandate what C-in-C powers the President has. Congress in a sense is giving the President the ability to use force that may otherwise not be allowed (I am assuming that Congress rejects a declaration of war and only offers an AUMF). Since the President only gets an AUMF, he is subject to the control of Congress in carrying out this conflict that was allowed through statute.

I, and others, see the deployment of forces as an inherently C-in-C function that isn't subject to Congress' control, except as specified in the Constitution (power of purse, etc.). My side, of course, has the Constitutional high ground. :)
 

jao,

Oh okay, well, I agree that Congress can as a Constitutional matter prevent particular military action through its power of the purse. I may not think its a wise way of doing things, but it seems technically correct to me.
 

robert, (as to your last post)

jao provided no such thing. He only provided evidence for what I already agree with. Congress can use its power of the purse. Now this power can compel troops ceilings etc, but this isn't anything I disagree with in regards to the Constitutionality of such an action.
 

Addition to my longer previous post,

I, of course, recognize that Congress could its power of the purse to restrict deployments to Iraq, but I am taking issue with Lederman's comment that Congress could do that WITHOUT resorting to its purse powers (sounds odd, but it is kinda catchy).
 

@mort: Welcome. Try not to be too big a jerk, eh? For instance, you are certainly entitled to your (jaded) opinion as to Professor Levinson's sincerity, but it's really not apropos here, nor is the expression of that opinion anything like a substantive response to the Professor's points. Likewise, your ability to play reductio on Professor Lederman's argument may wow 'em over at Althouse, but here it's just a shabby trick to accuse another of doing what you yourself have done. Nor is reduction to the absurd ever a final argument; look how long the absurd results predicted by Zeno for that race between Achilles and the tortoise have stood.

As for Anne's literacy and logic, when you are man enough to take the debate to his language (or even know where Anne is from) then you can talk.
 

Robert,

I wrote that longer post above before reading your post right before it. I think we are settling on the main issue. Does a statutory grant to the President for the use of force subject him to greater Congressional control? And if so, how much?

I'm sure we can pretty easily figure out each other's answers to those questions.
 

HLS: jao provided no such thing. He only provided evidence for what I already agree with.

Jao: ...limit such deployments, including troop ceilings and qualitative restrictions on the military missions.

@HLS: Have you read the material Jao linked to? If so, does it or does it not support an argument that Congress has options other than the all-or-nothing complete defunding of the entire war? Don't hide behind "power of the purse," the issue is "all-or-nothing measures such as complete defunding."
 

Error in my 2:47 post

Should read, "2. Since, there is NO Constitutional prohibition on Congressional micromanagement of war according to Lederman's position..."
 

Robert,

Come on, are you reading my and Jao's responses?

Re-read them and then get back to me.
 

@HLS: Boy this medium sucks sometimes. Our posts passed each other. You and Jao agree the power of the purse can create less than all-or-nothing limits on the c-in-c. You and I agree there's an interesting question of what control Congress retains if it empowers the c-in-c via statute rather than by Constitutional declaration of war. Fair?
 

JaO said...

FYI, see this 2001 Congressional Research Service report, Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments. (PDF) There is historical precedent for using the power of the purse to limit such deployments, including troop ceilings and qualitative restrictions on the military missions.

Thank you for the review of this history. I would make a couple observations concerning this review.

1) Congress never attempted these kinds of power grabs in the nearly 200 years prior to Vietnam.

2) Most of the prior budgetary acts totally or nearly totally defunded the war in question after the President was already winding the war down.

3) The Presidents did not challenge the budgetary restrictions in court, so there is no case law as to whether Congress exceeded its authority.

4) However, when President Clinton declined to follow the War Powers Act concerning his deployment of military forces into the former Yugoslavia, the courts unanimously held that congressional representatives did not have standing to compel the President to follow the War Powers because the issue was a non justiciable political question between the elected branches. Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), cert. denied, 69 U.S.L.W. 3294 (U.S. Oct. 2, 2000)(No. 99-1843). I would expect that if Bush ignored limits placed upon the funding for Iraq, the result would be the same (unless a Reinhart panel of the 9th Circuit needed to be reversed again by the Supreme Court). The courts generally do not want to get in the middle of these political arguments.
 

Mortimer Brezny said:

Marty Lederman is a law professor who has proposed a method of interpreting the Constitution that yields absurd results like that Congress can force the President to go to war armed only with plastic spoons.

No more absurd that maintaining that through unchecked and absolute powers (absent those specifically enumerated in the Constitution for Congress) that the preznit can order the troops to go into battle armed only with plastic spoons (which is essentially what "Bart" has done). Which is more likely to happen? JOOC, what would you say of a campaign which immediately secured the Oil Ministry and rushed right past arms depots containing tons of explosives (and allegedly, "WoMD"), failing to secure them? Anything akin to "go[ing] into battle armed only with plastic spoons"?

Cheers,
 

hls, what is your view of the consequence if Congress were to repeal the AUMF for Iraq (as JaO suggested on the other thread)? Would that end the Presidential CinC power, or could he continue to keep troops in Iraq or even order in additional ones?

Another question, this time assuming that the AUMF stays in place. Under your view of CinC power, could the President raise new troops or buy new weapons without Congressional authority, or is he limited to existing troops and weaponry?
 

One peripheral note of correction and one more substantive observation:

1. Bart writes that "President Clinton declined to follow the War Powers Act concerning his deployment of military forces into the former Yugoslavia."

Not so. The Clinton Administration never formally announced a view on the constitutionality of the 60-day limit. As for Kosovo, DOJ argued not that the WPR could be ignored -- we didn't even obliquely suggest any such thing -- but that Congress had subsequently authorized the extension of the operation: http://www.usdoj.gov/olc/final.htm. That statutory (not constitutional) conclusion was, of course, quite controversial, and prompted the Campbell litigation, but we did not argue that the WPR was unconstitutional. (I'm using the royal OLC "we" here. For the record, I was not involved in resolving the question at the time.)

Indeed, the only time OLC had ever opined on the WPR 60-day limit prior to the current Administration, it held that it *is* constitutional. See 4A U.S. Op. OLC 185, 196. And no President since enactment of the WPR has said otherwise, except that Reagan hinted at constitutional objections in a different signing statement in late 1983.

For what it's worth, and IMHO, although the 60/90-day rule of WPR section 5(b) is perhaps inadvisable, and very difficult to enforce, there's little serious doubt about its constitutionality.

2. Humblelawstudent has some very interesting and thoughtful reactions to this debate, but I'm not quite sure exactly what her or his objection might be to the hypothetical "no escalation" statute.

At times, it sounds as if she or he concedes that there's no independent *restriction,* emanating from the Commander-in-Chief Clause or elsewhere in Article II, on what Congress can enact, because HLS acknowledges that a statute can, of course, impose such limits as a condition on *funding.* If so, then the only question is identifying sources of authority in Article I apart from the Spending Clause, *not* whether there are Article II limits. In the previous thread, I identified several other sources of Article I power, and won't reopen that discussion here.

At other times, however, HLS indicates that there might be some *substantive* limits on how Congress can regulate the conduct of war -- an argument that apparently would apply to the spending power as well, although HLS oddly does not seem to think so.

In this connection, HLS asks: "Could Congress have stipulated that the President could not have used Big Red One (1st Infantry Division) in the assault on Normandy?"

Answer: Yes. Of course, such a statute seems very stupid, which is exactly why HLS is using it as the hypo. Indeed, enacting such a statute by a two-thirds majority of both houses after a presidential veto is well-nigh inconceivable -- which is why the veto power is the President's most important tool in war-power conflicts.

But that doesn't make such a statute unconstitutional. In order to think about the hypo clearly, one must imagine a world -- a set of circumstances -- in which two-thirds of each House would actually enact such a rule over the President's objection. Of course, the only way that prospect is remotely conceivable would be in a world in which the President had announced his intention to use the Big Red One, and there was an overwhelming public and legislative consensus that such a tactical judgment would be catastrophic -- e.g., that it would almost certainly lead to abject defeat. In which case, the statute wouldn't seem so preposterous, would it? What *would* be strange would be a constitutional system in which the President could, in the teeth of such a consensus view of disaster, go ahead with his catastrophic plan anyway, and no one -- not even two supermajorities prepared to take the momentous and solemn step of second-guessing the CIC's judgment in wartime -- could stop him.
 

Robert,

Fair enough.
 

Professor,

Thanks for your response. Just for the record, I'm a he -- so you don't have to use those awkward "he or she" phrases.

1. I agree that Congress through its power of the purse can heavily influence what the President can and cannot do with his C-in-C power. However, this power of Congress only extends as far as control over money allows. Congress would have a very difficult time in forcing the President to commit a particular division or use a particular tactical strategy because of the inherent limitations of the powers that can be wielded through funding. This is a natural protection mechanism for the President's C-in-C powers in relation to Congress' funding power. I'm not sure as to any/what Article II limits there would be on Congress' funding power in interfering with the Executive's C-in-C power. Just don't know enough on this point.

2. You answser my question about whether the statute stating Big Red One can't be used by using an appeal to the merit of the decision making process by which such a statute was enacted, but that isn't enough by itself to explain its Constitutionality.

3. How is the President the commander of the armed forces if Congress can at will (in terms of the Constitutional requirements) through statute conduct/change any aspect of the war that it pleases (without even using its power of the purse of which there is at least some actual textual support)?

No offense, but this seems like an example of an interpretation being at complete odds with the plain text of the Constitution.
 

As promised here I'd reply to your complaint here as well.

You say that I've asked you to argue on the merits, while you've been doing so all along. You say you're using a reductio ad absurdum. As anyone who attends law school, you probably now that the reductio is a rethorical tool that is quite dangerous for two reasons: 1. A lot of times it seems like you are ridiculing you opponent but not really making an argument. 2. Usually the person making the reductio just covers for the fact that his argument is weak on the merits.

In the first case, you are or seem to be attacking your opponent and not his argument (which you did in this post.

You seem to fail the second "prong" as well. Prof Lederman argued (as I already said in my reply) that Congress can already defund certain wars and set limits on the CIC power (MCA, UCMJ, the War Crimes Act). He says that Congress can use the same power to set a ceiling to the number of troops.

You say that Congress "can force the President to go to war with soldiers whose only weapons are plastic spoons", but you happily ignore the Lederman's argument that Congress can already force the President not to go to war, or respecting certaing conditions when fighting a war.

I'm left with to choices here: either you are ridiculing Prof Lederman as you did with Prof Levinson or you seem to be so blinded by your own witty remark about plastic spoons that you forgot to actually answer to prof. Lederman's arguments. In both cases you didn't respond to the merits of prof. Lederman's argument and I stand behind my criticism.
 

@mortime brezny: you see why a reductio ad absurdum is such a week argument? HLS used one, Prof. Lederman reversed it and now we all agree that this doesn't solve the question at hand.
 

Prof. Levinson:

But that doesn't make such a statute unconstitutional. In order to think about the hypo clearly, one must imagine a world -- a set of circumstances -- in which two-thirds of each House would actually enact such a rule over the President's objection. Of course, the only way that prospect is remotely conceivable would be in a world in which the President had announced his intention to use the Big Red One, and there was an overwhelming public and legislative consensus that such a tactical judgment would be catastrophic -- e.g., that it would almost certainly lead to abject defeat. In which case, the statute wouldn't seem so preposterous, would it?

That was the gist of my post above as well: The idea that it can't be constitutional to legislate a course of action because it might be a horrendously bad piece of legislation (Mortimer Brezny's reductio ad absurdum) applies with equal weight to any presidential powers; in fact the only course that makes sense in terms of remedying such a structural defect is to allow for checks and balances on the extremes both ways. And in fact, that is the usual approach taken to constitutional issues such as this: Avoid the extremes (such as unfettered and unaccountable executive power); they're usually "bad law", and seek a pragmatic and workable compromise that gets the job done.

Cheers,
 

Oooops. Prof. Lederman.
 

hls: 3. How is the President the commander of the armed forces if Congress can at will (in terms of the Constitutional requirements) through statute conduct/change any aspect of the war that it pleases (without even using its power of the purse of which there is at least some actual textual support)?

No offense, but this seems like an example of an interpretation being at complete odds with the plain text of the Constitution.

That's because you take your preferred reading of the text as capital-T-definite-article-The "plain" text reading. The Constitution plainly means for each branch to check and balance the others. As Professor Lederman says, it would be plain silly to imagine the Constitution was meant to allow a c-in-c to commit acts of aggression after a super-majority override of a veto of legislation prohibiting such aggression. That's the problem with "plain meaning" arguments in general, they hide assumptions which aren't really plain at all, a point which has been covered here at length but which probably bears repeating. Some folks go for "plain meanings" because they lack analytical ability. Others because it gives them a rhetorical edge. But it is never legitimate to try to divorce one's instinctive, preferred reading from the myriad legitimate other readings of any given piece of work.
 

This doesn't happen often, but I think I agree with HLS. We all agree that congress can stop funding a war under it's spending power. Prof Lederman argued that Congress passed statutes limiting the CIC-powers before (MCA, UMCJ etc) and there haven't been complaints about the constitutionality.

I think it's a long shot arguing that this means Congress can constitutionally prohibit the President from deploying Big Red One. Up untill now Congress used it's powers to set broad, abstract limitations on the CIC-power: the army cannot torture (now that I think of it, the torture memo's did argue that the war crimes act was inconstitutional), the president must ask Congress for permission to use force, the military should abide certain procedures when trying soldiers etc. These weren't tactical decisions though. For me Art II says that the CIC get's to make those. So if the President decides to send in the cavalry only equiped with plastic spoons, he can.

But then again: the plain text of the constitution does not adress this question. I think the Constitution is an inherent political document. So, if Congress forces the president not to deploy Big Red One by passing a statute with a veto proof margin, I'd say the constitutional question is answered.
 

I'm waiting for the "Tu quoque Brute". (See Mortimer I can do that Latin trick too!)
 

Robert and others,

Please help me understand how the President can be the C-in-C of the military if Congress can, through legislation, theoretically run the entire war and it would be Constitutional according to your view.

My point is this, according to many of yours' and Professor Lederman's logic, this is perfectly Constitutional. So, I can't understand how the term C-in-C has any meaning at all under your interpretation.

That is why I say your interpretation is at odds with the plain meaning. Because you take a theory which doesn't have explicit support in the text to read in an interpretation that is at odds with a plain reading of the words.
 

HLS: No offense taken, of course. I'm grateful just to have critical readers.

You write that my argument "seems like an example of an interpretation being at complete odds with the plain text of the Constitution."

Well, I'm hardly one to think that constitutional text is the be-all and end-all of constitutional interpretation. But in this case, I'd think that textualists would be decidely on one side the debate. How's this for starters?:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; * * *

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

* * *

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations [not relevant to this particular proposal, but often relevant to other war-powers statutes];

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

* * *

And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

All of which is to say: There aren't any areas of public life in which the framers and ratifiers spoke more clearly, resolutely and *comprehensively* about congressional powers.
 

Professor,

I agree! Not to beat the poor dead horse too much, but everything you cited goes to Congress' power to create/fund/regulate the military. Which, IMO, seems categorically different from making force deployment decisions and the like.

Here is a part that I like, "The President shall be commander in chief of the Army and Navy of the United States."

I ask once again, how can the title Commander in Chief meaning anything if Congress can Constitutionally direct any and all aspects of a war through legislation.

I think the key thrust of the powers given to Congress is when it states, "To raise and support armies" for Congress. Contrast that with, "The President shall be commander in chief." It seems to me (but I guess obviously not to others) that these key phrases show the thrust of the power granted to each branch.
 

@HLS: I kind of like Kinkopf argument that the CIC command which ever war Congress gives him to command.
 

"How can the title Commander in Chief meaning anything if Congress can Constitutionally direct any and all aspects of a war through legislation?"

Come on, HLS, you know the answer to this. I am in charge of my classroom at school. I have complete discretion on how to run it -- except when I don't, because GULC has prescribed certain rules for how it should be run.

The Commander-in-Chief is at the top of the military command pyramid. His discretionary military command decisions cannot be superseded or reviewed by others within Congress or the Executive branch. Congress can't pass a statute making the President's decisions for the Iraq conflict subject to your review, or mine, or Nancy Pelosi's, or Alexa Morrison's. To the extent there is any discretion in the war -- and of course that describes 99.9% of what happens in Iraq and in DOD generally -- the decision is ultimately for the President to make.

But there are a bunch of statutes and treaties that cabin that discretion in various respects -- *without* rendering any other person the "chief" of command.

The theory really isn't that complicated or illogical.
 

Professor,

I apologize if I am frustrating you.

But, I disagree with your analogy though I do appreciate it because it helps me understand your perspective. I don't see the running of the war as some subset of power given to the President that Congress can at will override/change. The power to run the war is categorically different but on equal footing with Congress' power to raise and regulate the military. I guess you think differently. (Though, I'm not going to pretend that my opinion is based on as much knowledge as yours).
 

That's the good thing about constitutional interpretation: there is not one right interpretation. Hence my comment on the inherent political nature of the constitution.
 

Look at it this way, hls. Suppose that instead of delegating the CinC power to the President, the Constitution simply gave the President power to appoint some general as CinC. Do you believe that general would have the same power you now attribute to the President?

Your "plain text" argument only gets you so far, which is why I asked the questions above. Assume the President is CinC; that is, under your view, a substantive Art. II power. At this point, then, we have to ask how we interpret that power in light of possible conflicts with other provisions. For example, if the exercise of that power conflicts with the spending power, or the "regulation of the army" clause, or the "provide and maintain a navy" clause, which prevails and why?
 

Mark,

Without having thought through all the implications, I think that general would have the C-in-C powers that I attribute to the President.

As for your balancing of powers question, there are already numerous conflicts. Resolutions of them ebb and flow over time. I dont see how this would have to be any different.
 

I think that general would have the C-in-C powers that I attribute to the President.

That's a logical answer, but the policy implications strike me as staggering.

As for your balancing of powers question, there are already numerous conflicts. Resolutions of them ebb and flow over time. I dont see how this would have to be any different.

But it's that very issue which is under debate here. I don't see how you can avoid it when you're the one making a "plain text" argument and others have suggested other provisions which conflict with that reading.
 

Here is an interesting case I found. This is partially in response to the cases cited in the linked article provided by Lederman on another post. The case isn't exactly on point, but feel free to take a look at it.

Hamilton v. Dillin, 88 US 73, 88 (1874) "By the Constitution of the United States the power to declare war is confided to Congress. The executive power and the command of the military and naval forces is vested in the President. Whether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy may or may not be exercised by the President alone, who is *constitutionally* [not just statutorily] invested with the entire charge of hostile operations, it is not now necessary to decide, although it would seem that little doubt could be raised on the subject."

The case doesn't prove my point, but it does hint at my interpretation -- though I'm sure others will differ.

I'll keep digging.
 

Fascinating discussion.

@HlS noted: "I, and others, see the deployment of forces as an inherently C-in-C function that isn't subject to Congress' control, except as specified in the Constitution (power of purse, etc.)."

What are the contours of this? Mention is made about regulating forces in the field and I'm wary about Congress deciding such and such division can or cannot fight in a war. Since the courts would probably not get involved in such a dispute, I think political reality favors ML though.

[Realistically, the power of the purse etc. can pressure the POTUS not to do it. The plastic spoon hypo is silly, since no sane POTUS would do it, even with the authority. Such political realities makes chunks of this discussing a fascinating thought exercise.]

This, however, seems an interesting but somewhat besides the point issue. The true issue is the "war" or "conflict" (insert appropriate noun) itself.

This "deployment" power would seem to allow the President to send troops into Iraq w/o an authorization of force. Or, even if we were at peace and had a treaty of amicity. Unless to prevent "sudden attacks" and such, such war-like deployment seems to require congressional authority. IOW, limits are "specified," structurally and otherwise.

A case during the Mexican War spelled out that the c-i-c authority is an executive one pursuant to lawful authority. Not some inherent power to do with troops as the POTUS seems fit for our safety. This makes sense for an "executive" in general.

The useful place to look was the 2003 AUMF which others note seems to have been carried out to completion. If so, I don't think "deployment power" is freestanding.

If the matter is unclear, a clarifying authoritation would make sense. Of course, the P. might veto it. In fact, President Cleveland refused to go to war with Cuba, so a situation might have arose where such a veto would prevent war.

This seems to be the bottom line. There is a debate whether the AUMF still holds. The debate is surely a "political question." But, if a veto proof majority (not going to happen, honestly, so all of this is academic) "clarified" it to mean what JAO suggests it means, the President would have no authority to continue.

In lieu of impeachment proceedings, this would not really mean much in reality, though.

OTOH, the problem that war is possibly easier than peace, that is, how the President's veto might result in a continuation of a war a majority of Congress opposes, has been much discussed.

Political means are available to make this a very painful position for both sides. So would popular ones -- w/o the necessary funds etc., mass desertions would be likely, etc.

There tends to be a way around technically absolutist crises of this type.
 

Mark,

1. Yes, the policy implications would be staggering. Thankfully our founders weren't that dumb.

2. But the professor isn't really saying there is a conflict. He is saying that Congress, as a Constitutional matter, has complete superiority including the actual use and placement of military forces. He just argues that pragmatic and politial concerns keep them from exercising it.

Under my view, the President has operational control over the military. If Congress doesn't like a particular force disposition, tough, unless they are willing to defund the unit.
 

joe,

I don't think I've argued that the deployment power includes the power to attack countries that we are not at war with.
 

okay, I have to call a truce for the next few hours. The BIG GAME is about to start!
 

@HLS: I truly think you are mistaking arguable connotations of "C-in-C" for unarguable denotative meanings. C-in-C denotes top commander, no more, no less. We are exploring connotations of the term, where they are left ambiguous by our founding document. In particular we are trying to understand the terrain between an all-or-nothing retraction of authorization to use force and an all-or-nothing acquiescence to the will of (any) President once granted authorization to use force. (And note we are for the moment skirting the issue of an AUMF v. an actual Constitutional declaration of war.) The Kinkopf piece makes some strong arguments that at least in the past Courts have been willing to allow Congress to set some pretty specific limits on a President's authorization, including:

...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.

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

If I was the government this is the case I'd be most concerned about distinguishing, if possible. I don't think it's possible. If Congress can limit so discrete a matter as "to" versus "from" a given port then certainly general matters such as troop numbers would fall under it's purview as well.

hls: He is saying that Congress, as a Constitutional matter, has complete superiority including the actual use and placement of military forces.

Be wary of superlatives and absolutes. Professor Lederman said nothing of the kind; on the contrary he seems to be saying that as Congress does not possess such absolute and unaccountable power neither does the C-in-C. Black and white thinking, thinking in absolutes is tempting. Don't succumb.
 

HLS: Dig away. There actually is dicta you can cite that makes the question more interesting than it appears at first. Indeed, it's because there is such a longstanding confusion on this score, and such little resolution in the courts (due to the fact that until three years ago, no President had ever argued in a SCOTUS brief that a war-powers statute unconstitutionally impinged on his CIC authority), that I'm currently engaged in writing on this topic. There's much, much more to be said. And it's not my view that there are no arguments on the other side -- only that someone such as Biden shouldn't be uncritically embracing them, especially when he has voted for such statutes in the past.

The weakness of authority supporting the President's argument, however, is revealed by the fact that DOJ's lead citation, like yours, is Hamilton v. Dillin. (See the FISA "White Paper.") This is, to say the least, not the most auspicious lead citation for DOJ’s argument that "the Court has repeatedly acknowledged limitations of Congress’s power to regulate the Commander-in-Chief’s conduct of military campaigns."

As I am writing elsewhere, the Hamilton case did not deal with the Commander-in-Chief authority over the land and naval forces at all, let alone with statutory constraints on that power. The case involved a Civil War regulation of the Treasury Department, imposing a fee on goods transported from the Confederacy to the Union. The Court in Hamilton did, to be sure, state that the President alone is "constitutionally invested with the entire charge of hostile operations." But that unremarkable claim—-it is indisputable that no one else but the President has the charge of U.S. military campaigns—-does not begin to support the strong claim about the unconstitutionality of statutory limits on the Commander-in-Chief power. (Indeed, in the very sentence in which that quotation is embedded, the Court declined even to decide "[w]hether, in the *absence* of Congressional action, the power of permitting partial intercourse with a public enemy [the power at issue in Hamilton] may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations." 88 U.S. at 87.) The Court did not need to opine as to the President’s power in the "absence" of statute, let alone in conflict with statute, because the Court’s holding in the case was that the President’s actions *were statutorily authorized.* Id. at 88-97.
 

Well, heck. If Congress can defund the whole armed forces, it can surely defund part of them, such as the next 20,000 troops. Even the Kings of England had to get the money for their wars from Parliament, and the Constitution clearly intended to diminish, not increase, the executive power in this area.

So, the answer is, Congress can provide our soldiers with only plastic spoons if it wants, and the President has to make the best of it. That's because Congress is our, the People's, representative, and we've got the last say about making war. (And if the People don't like it, they can throw Congress out in 2008, but don't bet on that happening.)
 

Could I propose a slightly more credible example that plastic spoons or the Big Red One? Suppose during WWII Congress passed a statute that our invasion of Europe must take place through the Mediterranean or the Balkans (as Churchill favored) instead of at Normandy.

Would such a statute unconstitutionally infringe on the President's authority as C in C? As a layperson, I am inclined to agree with HLS that it does.
 

Thanks for the clarification. Your language at some points was a bit open-ended on that point and some do so argue.

The case btw seems a bit thin esp. since it involves trade, which is a congressional power, and language further down cites cases where the President had power until Congress acted.

Until the Congress acts, the President very well would usually have the power to deal with an "enemy." Lincoln did so in April 1861.

Enjoy.
 

@David Lewis: I think we already agreed that Congress can defund a specific fight. As far as I understand, we are now discussing whether or not the President can order a surge and whether or not Congress can do anything about it to stop it except for defunding.
 

RL ... to/from actually can be a significant difference. It sets the mission. The argument seems to be once a mission is set, the cic has broad powers to decide how to carry it out.

I guess you can narrow the mission to be "stopping ships going to France using the USS Constitition alone" but that could be a different hypo. Probably a bit more tricky at that.
 

The more I hear of it, the more I like the idea of plastic spoon warfare.
 

There is nothing particularly right or wrong with Mr Ledermans argument. But he brought up a highly unlikely hypothetical and most wars aren't hypothetical. It is recognized that the Congress is REQUIRED to fund the Army and Navy. It is recognized that the Pres is CinC. It is not recognized that a War Powers act is either required, allowed, or prohibited. But I think that you would have to argue that if a War is Authorized and funds are authorized for pursueing that war, then Congress couldn't set troop levels or micromanage the military ops. Can congress cut funding once authorized, sure if they can override the veto. But let's face it. The Pres holds the Royal Flush hand.
 

Marty Lederman said...

HLS: No offense taken, of course. I'm grateful just to have critical readers.

You write that my argument "seems like an example of an interpretation being at complete odds with the plain text of the Constitution."

Well, I'm hardly one to think that constitutional text is the be-all and end-all of constitutional interpretation. But in this case, I'd think that textualists would be decidely on one side the debate.

OK, this textualist will take a shot at determining whether your proffered provisions provide Congress with the power to order limits on troop deployments into a war zone.

How's this for starters?:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; * * *

This provision merely allows Congress to collect revenue for the common defense.

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes

This provision has nothing to do with the military.

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations [not relevant to this particular proposal, but often relevant to other war-powers statutes];

Your note renders this provision moot.

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

This provision allows Congress to start wars, authorize the capture of enemy shipping and set rules for the treatment of captured enemy prisoners.

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

This provision grants Congress the power to raise and supply armies, not command them.

To provide and maintain a navy

Exchange Navy for Army in above reply.

To make rules for the government and regulation of the land and naval forces

This provision grants Congress the power to enact rules such as the UCMJ for the good order and discipline of the members of the uniformed services, not to command those forces.

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions...

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

These provision allow Congress the power to federalize the militia.

And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The N&P Clause is merely an enabling provision permitting Congress to enact statutes necessary to execute an enumerated power. Given that there are no enumerated Article I powers which grant Congress command authority of any extent over the military.
 

But the professor isn't really saying there is a conflict. He is saying that Congress, as a Constitutional matter, has complete superiority including the actual use and placement of military forces. He just argues that pragmatic and politial concerns keep them from exercising it.

Ok, let me ask it this way: suppose Congress passes a statute saying "no money is to be used for more troops in Iraq". The President announces that he's going to send them anyway. Does his Art. II power trump Congressional Art. I power, or vice versa, and why?

Yes, the policy implications would be staggering. Thankfully our founders weren't that dumb.

I think their wisdom on this score might have some implications for the position you're defending here.
 

There is a very easy way to stop the President. The evidence gathering is about to begin in the coming weeks when the hearings on Iraq begin.

When all of the waste, fraud and criminally negligent acts performed by this Admin of thugs come to light on the floor of Congress Bush will be stopped.

Its called IMPEACHMENT.

If you think its not coming start thinking again.

If you can try to impeach Clinton over a BJ wait till you get a load of these hearings.

This is going to be a Ken Starr Wet dream for Dems.
 

Okay, let me make a few brief responses during this halftime.

Mark,

Congress wins. This is one way that Congress can legitimately affect ongoing operations of a war/conflict.

Robert,

Just to clarify, I'm not advocating an all or nothing approach. (I don't think you said I did, but I just wanted to state it again.) The power of the purse is a powerful way to control the President's prosecution of a war or conflict. Comparing the powers given to the President and the Congress in teh Constitution leads me to believe that the connotative meaning is the proper one.

You may disagree with my blanket statement, but it seems true to me. Work through the consequences of what the professor advocates. He denies there is any Constitutional prevention to Congress in essense dictating through statute the conduct of the war. His argument boils down to pragmatic and political reasons for why it chooses not to do so, but he never explains any reason as a matter of Constitutional law as to why Congress couldn't.


On a lighter note, UF is kicking OSU's butt.
 

Congress wins. This is one way that Congress can legitimately affect ongoing operations of a war/conflict.

That's my answer also, but I think the reason why it's my answer is significant: that in a republic, tie goes to Congress. IOW, even if the Constitution gives to the Executive an express, substantive power -- which you've argued here and which I'm not contesting for this purpose -- power delegated to Congress trumps the Executive power.

Now, given this reason, it would seem to me that Congress could manage the size of the national commitment to a war, at the least; that seems to me to follow naturally from the spending power, from the "declare war" power, and from the "raise and support armies" clause. I understand you to disagree with this conclusion, so when the game is over perhaps you could explain the reasoning which leads to your conclusion.

BTW, don't worry about your classwork. I'm sure Prof. Lederman will write you a note....
 

This is supposed to be the new, tough Joe Biden? Go home, Joe.
 

Porcupine Pal had a good point about the amendment forbidding funds to be used to support the contras against Nicaragua, but got the name wrong:

It was the Boland amendment.
 

You say that Congress "can force the President to go to war with soldiers whose only weapons are plastic spoons", but you happily ignore the Lederman's argument that Congress can already force the President not to go to war, or respecting certaing conditions when fighting a war.

I haven't ignored anything; you just aren't very smart. My argument is not that Marty Lederman's theory of interpreting the Constitution is invalid; it's that it's worse than other available theories because it's more likely to reach absurd results.

I have debated Prof. Lederman before on this topic in blogs (probably under different names) and am familiar with his method; for example, he claims that the Necessary and Proper Clause by itself can support Congressional action. Of course, anyone who has been to law school knows that isn't true; you've got to combine the Necessary and Proper Clause with another clause of Article I that it's effectuating. Does that mean his method of interpretation is invalid? No. It's valid; after all, the Necessary and Proper Clause is right there in the Constitution and Prof. Lederman gives it meaning. But his method certainly is unsound, given that it goes against the text, the history, the precedent, the purpose of the clause, and comparative analysis of other constitutional structures with such a clause. What's more, Lederman uses his valid-but-unsound methodology to reach all sorts of controversial results that many respected constitutional theorists, even those of the same political stripes, would call aberrant. Now, I wasn't attacking Prof. Lederman personally by claiming his methodology of constitutional interpretation would lead to permitting Congress to mandate that the President must go to war with troops armed only with spoons -- that's actually a consequence of his method. Richard Epstein employs a very, very similar method and he admitted, in public debate, that his method results in Congress being able to force the President to go to a shooting war without any bullets. Wit has nothing to do with it.

It doesn't matter that Prof. Lederman's theory is valid; there are plenty of valid interpretive theories; valid theories are a dime a dozen. The point is that many of those alternatives get us the benefits of Lederman's interpretive theory without any of the absurdities. Why not prefer those alternatives?

It's a rather simple argument that you can't answer.

I'm left with to choices here: either you are ridiculing Prof Lederman as you did with Prof Levinson or you seem to be so blinded by your own witty remark about plastic spoons that you forgot to actually answer to prof. Lederman's arguments. In both cases you didn't respond to the merits of prof. Lederman's argument and I stand behind my criticism.

Actually, you just didn't understand the nature of my criticism. You're not very bright and you're not doing either Professor Lederman or Levinson any good with your strident tone.
 

@Mortimer: You seem to think that I am here to defend Levinson or Lederman. But I'm not. They can speak for themselves if they want to. I signaled that you were using a dishonest way of argumentation. And stand by it. You apparently stand by your conclusion that I'm stupid. That's fine by me. Just proofs my point though.
 

Well, I'm finally able to post again. I guess blogger is done reorganizing itself.

The Center for American Progress has issued a study detailing Congressional limitations on troop levels since 1970. A summary is available at http://www.americanprogress.org/issues/2007/01/military_deployments.html (I can't link it for some reason) and the full report is available as a pdf file. Some quick examples from the site:

December 1974. P.L. 93-559 – Foreign Assistance Act of 1974. The Congress established a personnel ceiling of 4000 Americans in Vietnam within six months of enactment and 3000 Americans within one year.

June 1983. P.L. 98-43 – The Lebanon Emergency Assistance Act of 1983. The Congress required the president to return to seek statutory authorization if he sought to expand the size of the U.S. contingent of the Multinational Force in Lebanon.

June 1984. P.L. 98-525 – The Defense Authorization Act. The Congress capped the end strength level of United States forces assigned to permanent duty in European NATO countries at 324,400.

July 2000. P.L. 106-246 – Military Construction Appropriations and For Other Purposes – Personnel Ceiling in Colombia: “no funds appropriated or otherwise made available by this or any other Act (including funds described in subsection (c)) may be available for— (A) the assignment of any United States military personnel for temporary or permanent duty in Colombia in connection with support of Plan Colombia if that assignment would cause the number of United States military personnel so assigned in Colombia to exceed 500; or (B) the employment of any United States individual civilian retained as a contractor in Colombia if that employment would cause the total number of United States individual civilian contractors employed in Colombia in support of Plan Colombia who are funded by Federal funds to exceed 300.”

There are also examples of funding restrictions, which seems to be uncontroversial in this discussion
 

Gah. Now the link got shortened. Here it is again: http://www.americanprogress.org/issues/2007/01/military_deployments.html
 

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