- The Washington Times - Thursday, March 1, 2007

The Democratic leadership in Congress is continuing its search for a politically safe way to force President Bush to withdraw from Iraq. The Constitution, however, offers no such option. If Congress wants to end the Iraq war over the president’s objections, it has only one constitutional alternative short of his impeachment — to cut off funding for that conflict and take full responsibility for the consequences that follow.

The bevy of current proposals mostly work from one underlying theme — legislation that would limit the number of American forces in Iraq and severely constrain their activities, with a view to forcing an end of U.S. involvement — a “slow-bleed” strategy of the sort championed by Rep. John Murtha. However, this type of enactment, even assuming “veto-proof” majorities in the House and Senate could be mustered to make it law, would exceed Congress’ legitimate authority and infringe on the president’s constitutional power as commander-in-chief. It would be unconstitutional.

The Constitution’s Framers divided the nation’s war powers between Congress and the president. Congress was granted the power to determine whether the United States should have a federal army and navy at all (it could have left the president dependent on the state militias), to make rules and regulations governing the armed forces it did authorize (such as the Uniform Code of Military Justice), and to provide for organizing the militias, granting privateer commissions and, of course, to declare war. To the president, they gave the office and all of the immense authority of commander-in-chief.

Throughout American history, the actual deployment of the American troops once hostilities have commenced has been correctly considered to be part of the commander-in-chief power. Indeed, it is difficult to conceive a function closer to the core of the president’s authority than the disposition of American forces to and in a particular theater of war. Congress cannot interfere with the president’s tactical, operational or strategic determinations, including his decision to reinforce the U.S. forces already in Iraq and the placement of those forces around that country or their military activities, any more than the president could infringe Congress’ authority by raising additional, unauthorized troops without its permission.

Nor can Congress evade the constitutional limitations on its power by purporting to revoke or modify the original authorization to use force against Iraq. The president dispatched American troops to Iraq with the full support of Congress, at the height of his constitutional power under the tripartite analysis suggested by Justice Jackson in the Youngstown Sheet and Tube v. Sawyer case. In that case, Jackson posited that the president was at the zenith of his power when acting in accordance with express congressional authorization. Mr. Bush secured that authorization before going into Iraq, and no new congressional action can rewrite that history. Congress cannot, as the old saying goes, un-ring a bell.

Rather, the real question is whether Congress can now order the president to cease hostilities — literally to stop shooting at the enemies of the United States and withdraw — while those enemies (in the form of al Qaeda fighters, Iraqi Baathist insurgents and Shi’ite militias) are still in the field. The Constitution grants no such power expressly, and neither law nor logic would support its implication. Indeed, implying such power would entrench upon the president’s independent constitutional authority as commander in chief to engage the actively hostile enemies of the United States where he can find them with the resources Congress has provided.

In this connection, the Democratic congressional leadership clearly has failed to grasp that, while the United States is at war with the various hostile forces in Iraq, including and especially al Qaeda and its allies, these groups are also conducting hostilities against the United States. This would not, and cannot, change simply because Congress decides that it has had enough of the fighting. Whatever Congress does, our enemies will continue to attack Americans and American interests wherever they can be found, and the president is constitutionally empowered (and arguably required) to meet and repel those actions.

In fact, there is only one way in which Congress can force the president to abandon America’s position in Iraq — by denying the armed forces the funding to continue the war. This strategy, of course, carries political risks. Curtailing funds for the Iraq war would rekindle doubt in the electorate regarding the Democratic Party’s commitment to a strong national defense, and recall the Vietnam-era ghosts of hostility towards the military.

As President Clinton wrote in his infamous 1969 “draft” letter, “I am writing too in the hope that my telling this one story will help you to understand more clearly how so many fine people have come to find themselves still loving their country but loathing the military.” However, paying the political price for one’s decisions is nothing more than accountability, a virtue greatly prized by the Framers, and the one they sought to promote by ensuring that Congress can check the president’s use-of-force decisions only in a dramatic and accountable manner. Thus, if the Democratic leadership actually believes that the Iraqi conflict is no longer in the national interest, then should have the courage of their convictions and deny funding. Otherwise, they should stop playing politics and let the president do his job.

David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times is switching its third-party commenting system from Disqus to Spot.IM. You will need to either create an account with Spot.im or if you wish to use your Disqus account look under the Conversation for the link "Have a Disqus Account?". Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide