Tuesday, February 5, 2008

Jan. 28, 2008, is a date that will live in congressional infamy. Congress surrendered the power of the purse over national security affairs to the White House.

President Bush appended a signing statement to the National Defense Authorization Act of 2008 denying the power of Congress to withhold funds for establishing permanent U.S. military bases in Iraq, or to control its oil resources. The statement tacitly averred that Congress was required to appropriate money to support every presidential national security gambit, for example, launching pre-emptive wars anywhere on the planet or breaking and entering homes to gather foreign intelligence.

A few members of Congress growled, but quickly moved on with their more docile colleagues to preserve earmarks. House Speaker Nancy Pelosi, California Democrat, regularly sermonizes that the Constitution is subservient to advancing the Democratic Party. The Republican leadership vocally defends the power of the purse for earmarks, but not for any matter of national security consequence.

Congress has taken the Constitution backward more than three centuries to the Stuart monarchs. King Charles I then levied a ship tax on maritime areas in times of war to build naval vessels. The tax provoked popular protest when the king expanded its reach nationwide and during peacetime. He prevailed in the British courts, but a post-Restoration successor, King James II, was overthrown for asserting an executive power to tax without the consent of Parliament. The English Bill of Rights of 1688 assailed the last of the Stuart monarchs for subverting the liberties of the Kingdom, “By levying money for and to the use of the Crown by pretense of prerogative for other time and in other manner than the same were granted by Parliament.” Accordingly, the Bill of Rights declared executive taxation or spending unauthorized by Parliament “illegal.”

Like the British, the Founding Fathers understood that the power of the purse in Congress was indispensable to checking the president’s temptation to concoct excuses for war to aggrandize executive power and to achieve popular unity. Article I, section 9 of the Constitution declares, “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” James Madison, father of the Constitution, acclaimed the power of the purse as an invincible congressional weapon for redressing grievances against the executive.

The president cannot veto congressional inaction in refusing to appropriate funds; and, he cannot spend a dime on the military or otherwise unless Congress affirmatively passes an appropriations bill.

The National Defense Authorization Act’s restrictions on President Bush in Iraq were no novelty. Congress has repeatedly legislated to constrain the president’s projection of the military abroad or has otherwise overridden his national security policies.

Richard Nixon was blocked from expanding the Vietnam War into Laos, Thailand or Cambodia. Ronald Reagan was prevented by the Boland amendments from employing the Defense Department, the CIA or other intelligence agencies to overthrow the Sandinista government in Nicaragua. Franklin Roosevelt was forbidden from deploying draftees outside the Western Hemisphere. William McKinley was prohibited from annexing Cuba. In Little v. Barreme (1804), the Supreme Court sustained Congress’ power to deny John Adams authority to seize ships sailing from France during a semi-war.

And Mr. Bush has bowed to congressional limits on military personnel in Colombia. So his signing statement was preposterous in claiming that the Act unconstitutionally handcuffed his ability to protect the national security by ruling out permanent military bases in Iraq or control of its oil fields.

Yet Congress acquiesced. It did not pass a resolution disputing Mr. Bush. It did not threaten impeachment. It meekly surrendered its national security relevance. Under the precedent it left undisturbed, the president could flout congressional prohibitions on spending funds to bomb Iran’s nuclear facilities, to invade North Korea, to conduct military offensives in Iraq, to install an anti-missile system in Poland and the Czech Republic, or to assist Taiwan against a Chinese attack.

A combination of congressional inertness and imbecility has crippled the power of the purse to check executive abuses and craving for perpetual war. Mr. Bush is now crowned with more power than the Stuart kings.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda.

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