The Veto Statement -- Not Surprisingly, the President Claims a Constitutional Prerogative

Marty Lederman

Here is the President's Message to the House returning the Iraq Supplemental appropriatiions bill without his signature. He closes with a constitutional objection that has been conspicuously absent from all of the White House's public statements about the legislation:

Finally, this legislation is unconstitutional because it purports to direct the conduct of the operations of the war in a way that infringes upon the powers vested in the Presidency by the Constitution, including as Commander in Chief of the Armed Forces.

[NOTE: This may appear to be something of a subtle shift in the White House's recent posture, returning to the hardline Cheney-Addington view of the Commander-in-Chief Clause. In a press conference four weeks ago, the President said: "The Congress is exercising its legitimate authority as it sees fit right now. I just disagree with their decisions. I think setting an artificial timetable for withdrawal is a significant mistake."]

As for the merits of the constitutional objection: In short, it's dead wrong.

As I explained here, there was no directive in the legislation about how the troops were to be redeployed, the rate at which they had to be redeployed, or by when the troops would have been required to be completely redeployed. The statute would only have required that the Secretary of Defense have the "goal" of completing redeployment within 180 days after it began. And the bill specifically provided that there was to be no funding limit at all for the contemplated "safe and orderly" redeployment.

The reference in the President's statement to the bill "direct[ing] the conduct of the operations of the war" presumably is intended to refer to section 1904(e), which provides that "[a]fter the conclusion of the redeployment specified in subsections (b) and (c)" -- a redepolyment of troops from Iraq that could have been completed on a timetable of the President's own choosing (with merely a "goal" of completion 180 days after its commencement) -- "the Secretary of Defense may not deploy or maintain members of the Armed Forces in Iraq for any purpose other than the following:

(1) Protecting American diplomatic facilities and American citizens, including members of the U.S. armed forces;

(2) Serving in roles consistent with customary diplomatic positions;

(3) Engaging in targeted special actions limited in duration and scope to killing or capturing members of al-Qaeda and other terrorist organizations with global reach; and

(4) Training and equipping members of the Iraqi Security Forces."

In other words, the bill would have provided that once the current armed conflict were effectively ended (with complete redeployment), then the President could use the Armed Forces in Iraq only for the four specified functions. (Another way of putting it is that the redeployment described in the bill would not in the first instance have required redeployment of troops whose conduct were limited to performing those four functions.)

This sort of statutory restriction is nothing new. Throughout our history, beginning with several statutes regulating the terms of the "Quasi-War" with France early in the Nineteenth Century, and continuing through the conflicts in Indochina, Somalia, Bosnia, etc., Congress has specified that the Armed Forces may be used for certain functions but not others in a particular setting. The Marshall Court enforced such a restriction in Little v. Barreme. Section 1904(e) is fully in keeping with this historical pedigree.
Posted 12:16 PM by Marty Lederman [link]