Balkinization  

Wednesday, May 02, 2007

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.

Comments:

This is unsurprising and hopefully lays rest to the unfounded argument made by some here that the President recognizes that Congress has the power to direct troops through the power of the purse because he has not raised the constitutional issue during political speeches.
 

L.S.,

OK, I'll take one for the team. (Someone has to say it.)

This bill does nothing of the sort. It tells the President when to start (!) withdrawing. It neither tells him when to finish, nor how to do it...
 

L.S.,

OK, it appears that prof. Lederman has graciously taken the time to reiterate his earlier comments that I tried to summarise as briefly as I could...
 

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

Once again, directing the deployment of troops is a command function which clearly falls within the President's general Article II CiC power and is nowhere mentioned among the Congress' specific Article I military and foreign policy powers.

The cases from the quasi war with France in first decade of the 19th Century do not hold that Congress may direct troops through its power of the purse. Rather, these cases determined that the United States was not at war for the purposes of determining whether a naval war prize statute was in effect.

Because Nixon agreed to these withdrawals, the courts never had the chance to determine whether Congress' direction of the troops in Vietnam finding bills was what appears to have been an unconstitutional assumption of Article II powers.

As I explained here, there was no directive in the legislation about how the troops would be redployed, the rate at which they had to be redeployed, or by when the troops would have been required to be completely redeployed.

Ordering deployment of any troops at any time at any rate and directing the missions of the remaining troops are not among the powers granted Congress in Article I.

The Constitution only empowers Congress to decline to fund the war.
 

I wonder what "the war" is that Bart says can be defunded? Obviously this is different from defunding the military.

One way to read the statement is that Congress can only "do nothing", leaving the troops where they are.

But another way to look at the vetoed bill is that the Congress did defund the war. The war in Iraq. War is not a place, war is a process to obtain a certain objective: military victory. The bill defunded the process which had the goal of military victory, in Iraq, over an ill-defined 'enemy'. They defunded the war in Iraq against an ill-defined enemy because that was not the purpose of the original funding. Congress funded a war against the Iraqi Regime of Saddam Hussein, to disarm his regime of weapons of mass destruction.

But the bill didn't defund the troops, it didn't defund the Afghan War, it didn't defund fighting terrorists in Iraq.
 

The Constitution only empowers Congress to decline to fund the war.

Tell it to Captain Little.
 

[Prof. Lederman, from the post]: 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."]


Not a "subtle shift" at all. This is what Dubya does when he's challenged. He gets defensive, and says, "Oh, Yeah?" It's so juvenile, it's appalling.

But I'd note that "signing statements" on vetoing a bill have even less significance than do such statements attached to bills he does sign into law (which is, in itself, very little ... you know, particularly if you're someone like "Bart" that believes that what's controlling is the plain language of the law):

"Indeed, part of my duty in upholding the [law] is to speak out against attempts to rewrite it by [executive] fiat rather than by the amendment process provided for in the [Constitution]." (minor editing for clarity on my part, see orginal post for the exact text)

As JaO has pointed out so many times, the only time any such sentiment of Dubya's may carry any legal weight is when Dubya has the balls to send his consigliere into court to argue that point. That he won't do.

["Bart" DePalma said]: This is unsurprising and hopefully lays rest to the unfounded argument made by some here that the President recognizes that Congress has the power to direct troops through the power of the purse because he has not raised the constitutional issue during political speeches.

Huh?!?!? Now "Bart"'s arguing that Congress doesn't have the "power of the purse" to defund further war?!?!? But ... but ... but ... "Bart" has argued that this is the power that Congress does have here and here, for instance....

I think that "Bart" will try to split hairs and say that he's talking about "the power to direct troops", and that he's not talking about defunding the war, but rather, Congress's "power of the purse" as a basis for "direct[ing the] troops", which "Bart" seems to think is the only possible basis for Congress to base legislation on. Needless to say, this is just another in a long string of "Bart"'s "straw men". Of course, most Congressional powers do not involve the "power of the purse", at least not directly; my tally shows 6 "PotP" clauses in Article I, Section 8, and 11 "non-PotP" clauses (not counting the "necessary and proper" clause"). It's clear that the "power of the purse" is a big hammer available to Congress, but hardly the only tool in the bucket. For "Bart" to pretend that this is the only "power" Congress has is ... well, just patently disingenuous.

That being said, I'd also note that the bill, as Prof. Lederman points out, doesn't require withdrawal of any troops, but rather only forbids reintrduction of troops in a "combat" role, which is even more defencible as an exercise of Congress's plenary power to declare war.

Cheers,
 

"Bart" DePalma:

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

Once again, directing the deployment of troops is a command function which clearly falls within the President's general Article II CiC power and is nowhere mentioned among the Congress' specific Article I military and foreign policy powers.


Oh. So, while Dubya can't declare war, he can "direct[] the deployment of troops" to Beijing, and, as Commander-in-Chief, "direct" them to fire on any pesky ChiComs that have the nerve to get in the way. And Congress can't say "boo" about his command and "direct[ion]" because this is a plenary power of the preznit. I see. "Bart" is insane.

I suggest a look at this web page for more on this brand of insanity.

Cheers,
 

rmadilo said...

I wonder what "the war" is that Bart says can be defunded? Obviously this is different from defunding the military.

One way to read the statement is that Congress can only "do nothing", leaving the troops where they are.


Not quite.

Congress can provide a limited funding bill which would end in six months with the stated intent that that money be used to withdraw the troops before the funding runs out and the stated intent that there will be no more funding for combat operations in Iraq.

Congress does not have the power to order the troops to retreat from Iraq, but the alternatives they leave the President are to strand them there or withdraw them in defeat.
 

Bart: the alternatives they leave the President are to strand them there or withdraw them in defeat.

Bart, you lying, cowardly cheat, again you make with the self-serving false dichotomies. Had Congress the will they could simply repeal the authorizations of use of military force outright both for Iraq and the "war" on terror. But even the less politically difficult act of simply defunding the war doesn't result in the two specious alternatives you proffer. Once aware that his adventures were about to lose their cash flow a competent executive would wind matters down. There's nothing to keep him from calling the troops home right this second, out of there, now, and thereby sidestepping all this hogwash about the dangers of a timetable. Nothing except the same interests that caused him to start these adventures in the first place. And the fear of losing face in the eyes of trolls such as yourself.
 

JaO, where are you now???

Even President Bush acknowledges that Congress is acting within its constitutional authority. He simply disagrees with the policy articulated in the bill.
 

I suspect that neither Bart's constitutional objection nor the President's has any practical weight. If the Congress did pass, with veto-proof majorities, a funding bill requiring a troop withdrawal, and if the President disobeyed that directive, I suspect said President would be impeached and convicted.

Of course, the part of that scenario that won't happen is "veto-proof majorities". If it did, though, the Congress would certainly have the power to enforce its edict, whatever Bart DePalma or George Bush thinks is in Article II.
 

Robert:

There's nothing to keep him from calling the troops home right this second, out of there, now, and thereby sidestepping all this hogwash about the dangers of a timetable. Nothing except the same interests that caused him to start these adventures in the first place.

Actually, there is. I mentioned it above. Dubya's the kind of guy that -- regardless of the reasons he went to war (which everyone now knows were concocted) -- would continue the war just because people told him he was wrong, and he's just enough of an thin-skinned, insecure bully and thug to do the opposite of what anyone tells him he should do. Reminds me of my niece and nephew when they were younger: "I doan waaaaannnnaaaaa......."

Cheers,
 

Dilan:

I suspect said President would be impeached and convicted.

Of course, the part of that scenario that won't happen is "veto-proof majorities". If it did, though, the Congress would certainly have the power to enforce its edict, whatever Bart DePalma or George Bush thinks is in Article II.


"You and whose army?" Aye, that's the rub....

Cheers,
 

This comment has been removed by the author.
 

Dilan said...

I suspect that neither Bart's constitutional objection nor the President's has any practical weight. If the Congress did pass, with veto-proof majorities, a funding bill requiring a troop withdrawal, and if the President disobeyed that directive, I suspect said President would be impeached and convicted.

Of course, the part of that scenario that won't happen is "veto-proof majorities". If it did, though, the Congress would certainly have the power to enforce its edict, whatever Bart DePalma or George Bush thinks is in Article II.


It is certainly true that the text of the Constitution can be effectively rewritten by 5 Justices, 2/3 of Congress or a military coup. None of these options is justifiable or desirable.
 

Nona Nym: JaO, where are you now???

I'm here, and I readinly acknowledge this development. I agree with Marty that it does represent a shift in the White House's recent posture. (I am not responsible for inconsistency on the part of the White House.)

Notably, the language buried in the formal veto message is not anything Bush will ever have to defend in court. One way or another, this seems destined to be resolved politically.

And in public, Bush would much rather ignore the constitutional angle because he would rather force congressional Democrats to assume joint ownership of Iraq policy. From his point of view, I think, that is a smart tactic. But it would be ruined if the constitutional "argument" were actually valid.
 

"You and whose army?" Aye, that's the rub....


You DO know Arne that you are the master B.S. spotter and my hero. LOL! Got into a discussion with my mentor, a neo-con Con Law prof, who feels that the Bust administration is really, really tempting us (potentially) into testing the old saw that "it could ultimately come down to which side the generals come down on."
 

Der Schatten:

You DO know Arne that you are the master B.S. spotter and my hero. LOL! Got into a discussion with my mentor, a neo-con Con Law prof, who feels that the Bust administration is really, really tempting us (potentially) into testing the old saw that "it could ultimately come down to which side the generals come down on."

Well, it seems to work for Turkiye. Has kept them out of a bit of trouble, even if it does have its downside....

Cheers,
 

Okay, let us say that Congress doesn't trust the president. What if they fund the war, or rather underfund the war. They say: you can spend lots of dollars on equipment, body armor, medical care, etc., but not too much on extra stuff. You can spend tons, literally, tons of dollars on securing our troops, if you have any left over, do what you want. I'm not sure how different this is from anybody on a budget. First food, shelter, health, and safety. If you can manage anything after that, go on whatever spree you want. But the argument seems to be that Bush gets to decide how much to ask for, maybe the generals help out with that, and the Congress has no recourse except to either micro-manage the war or defund the war, if this can somehow be disambiguated from military spending. Another option is to simply put the president on a budget. I think you would definitely get more honest answers from the military once spending is contained.
 

[Prof. Lederman, from the post]: 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.

["Bart" DePalma]: Once again, directing the deployment of troops is a command function which clearly falls within the President's general Article II CiC power and is nowhere mentioned among the Congress' specific Article I military and foreign policy powers.

The cases from the quasi war with France in first decade of the 19th Century do not hold that Congress may direct troops through its power of the purse. Rather, these cases determined that the United States was not at war for the purposes of determining whether a naval war prize statute was in effect.


"Bart" thows out the old "straw man" of the "power of the purse". Nonsense refued elsewhere.

But "Bart" evades the point that such cases showed that Congress could set rules for what the military could and could not do. "Bart" misconstrues the holding in these cases.

Because Nixon agreed to these withdrawals, the courts never had the chance to determine whether Congress' direction of the troops in Vietnam finding bills was what appears to have been an unconstitutional assumption of Article II powers.

But seeing as the laws were enacted, and that they were not challenged as unconstitutional and struck down, the prudent assumption would be that they are indeed valid, particularly since such type laws were hardly de minimus so as to counsel ignoring their constitutional infirmity.

Cheers,
 

"It is certainly true that the text of the Constitution can be effectively rewritten by 5 Justices, 2/3 of Congress or a military coup. None of these options is justifiable or desirable."

Even taking your premise, all Bush has to do is listen to what the American people want and it won't happen.

All of your constitutional theories, Bart, ignore the fact that what we essentially have is a President who refuses to do what the public wants him to do on a major issue. When you have that scenario, all sorts of things that you (or I) might find undesirable may happen.
 

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