May 1, 2007  

Power struggle

Washington’s war over Iraq is also a constitutional debate

George W. Bush “is the president of the United States, not the king of the United States,” Sen. Harry Reid, D-Nev., declared. “He has another branch of government, a legislative branch of government, he has to deal with,” said Reed, who heads the Senate side of that legislative branch.

The Democrats who now control Congress are determined to start winding down the war in Iraq.

Bush is just as determined to keep the war going “until the job is done.” “Democrat leaders in Congress seem more interested in fighting political battles in Washington than providing our troops what they need to fight the battles in Iraq,” Bush complained after both houses voted to include troop withdrawal dates in a war funding bill.

After six years of acquiescence from a compliant Republican-led Congress, Bush is still adjusting to a legislature controlled by the opposing party.

So are the Democrats.

They were uncertain enough of their new role that in January, just weeks after taking charge, the Senate Judiciary Committee convened a panel of law professors to advise them on “exercising Congress’ constitutional power to end a war.”

Reassured by what they heard — that Congress has authority under the Constitution to set parameters for the war in Iraq — and by growing public support for ending the war, the new majority has grown increasingly assertive. On March 23, the House approved a $124 billion spending bill that keeps funding the war, but also requires U.S. troops to be out of Iraq by Aug. 31, 2008. The House measure squeaked through on a 218-212 vote. Six days later, the Senate passed a similar bill by a similarly tight margin, 51-47.

The White House accused Congress of trespassing on the president’s turf. “I think the founders of our nation had great foresight in realizing that it would be better to have one commander in chief managing a war, rather than 535 generals on Capitol Hill trying to do the same thing,” said presidential spokeswoman Dada Perino. “They’re mandating failure here.”

Who’s right? Where does the president’s authority stop and Congress’ authority begin? This is not uncharted territory, but it hasn’t been traveled for a while.

On the one side are Democrats who maintain they were handed control of Congress by the voters last November specifically to end the war. Near the top of their ranks is Sen. Russ Feingold, D-Wis., who chaired the Judiciary Committee hearing and said, “If and when Congress acts on the will of the American people by ending our involvement in the Iraq war, Congress will be performing the role assigned it by the founding fathers — defining the nature of our military commitments and acting as a check on a president whose policies are weakening our nation.”

On the other side is Bush, who said, “Democrats in the House, in an act of political theater, voted to substitute their judgment for that of our military commanders on the ground in Iraq. They set rigid restrictions that will require an army of lawyers to interpret. They set an arbitrary date for withdrawal without regard for conditions on the ground. … As I have made clear for weeks, I will veto it if it comes to my desk.”

So, who’s right? More important in Washington, who’s going to win? Rep. Joseph Sestak, D-Pa., is reluctant to predict the outcome, but as a freshman Democrat, a retired three-star admiral and a Harvard Ph.D. in political economy and government, he views the struggle between Congress and the president through an unusual prism. When it comes to war, the Constitution actually assigns more responsibility to Congress than it does to the president, Sestak said. While the Constitution names the president as commander in chief, that’s about all it says about him, he said. “The preponderance of responsibility” for the military is actually placed on Congress.

To Congress, the Constitution assigns the power to declare wars, to make rules concerning captures on land and water, to raise and support armies, to provide and maintain a navy, to make rules for regulating land and naval forces, to provide for calling up the militia to carry out laws, to suppress insurrections and repel invasions, and to provide for organizing, arming and disciplining the militia.

But “since World War II, Congress has been largely absent” when it comes to carrying out some of those responsibilities, particularly declaring wars, he said. “It is the duty of Congress to do” what it is doing now. “We are responsible for providing for the common defense – not just the money, but judgment about how well the common defense is being carried out,” said Sestak, who spent 31 years in the Navy.

Steven Groves agrees that there’s a division of power between the legislative and executive branches. But he sees it differently. The framers of the Constitution made the president commander in chief because “they understood that running a war by committee or by consensus would greatly hamper the ability of military leaders to perform their duties,” said Groves, a scholar at the conservative Heritage Foundation and a former senior counsel to the Senate Permanent Subcommittee on Investigations.

“There is a healthy debate about whether what Congress is doing [by setting troop withdrawal dates] is stepping over the line. Strict constructionists would say it is,” Groves said. Under that interpretation, the Senate bill, which sets a withdrawal “goal,” is probably constitutional, while the House version, which sets a mandatory withdrawal deadline, probably is not, he said. “If you put benchmarks on what you have to achieve in order to keep the money, or before we start calling for withdrawal, then that’s toying with executive power,” he said.

Even if Congress can’t set withdrawal dates, there’s a lot else Congress can do. The House and Senate could limit funding to specific purposes — for defense of bases, for training of the Iraqi military, for carrying out specific missions — and “not fund the rest of it, and that’s constitutionally valid,” Groves said.

Congress has explored this territory before. In 1994 the Senate approved a resolution supporting the prompt withdrawal of U.S. forces from Haiti and requiring the president to clarify the military mission and national security objectives of the Haiti operation. But none of it was mandatory. In 1993, a Senate amendment limited U.S. forces in Somalia to a combat security role for United Nations units, and cut off funding for military operations – unless the president obtained specific authorization from Congress. In 1983, after the suicide attack that killed 241 U.S. peacekeeping troops in Lebanon, Congress required President Reagan to get congressional approval before making any “substantial” increase in U.S. forces there. Reagan opted to withdraw. In 1973, after 15 years of fighting and 58,000 Americans killed, Congress cut off funding for the Vietnam War.

“There’s a lot of dispute about what is and isn’t constitutional regarding the power of Congress to control the purse and power of president to be commander in chief,” said Scott Lilley, a scholar at the liberal-leaning Center for American Progress and a former staff director for the House Appropriations Committee. “The courts have generally not taken up cases where there is conflict,” so there are few solid guidelines, “and the scholars are all over the place on what is or what isn’t constitutional, Lilley said.

“I think the large percentage of constitutional scholars would say Congress can put a deadline on” combat operations, he said, contradicting Heritage’s Groves.

Even though Congress can legally, it is doubtful that it can politically. War opponents in neither house are expected to have enough votes to override Bush’s promised veto. Democratic leaders in the house “had to twist a lot of arms” and add billions of dollars worth of special-interest spending to corral the 218 votes they needed to pass the war funding bill with withdrawal deadlines, said Groves. It is inconceivable that they can increase that number to the 290 needed to override a veto, he said.

In the Senate, Republicans, confident of a presidential veto and the lack of votes for an override, opted not to filibuster the withdrawal date in order not to delay passage of a final funding bill, Groves said.

So what happens next? Lawmakers will try, try again. Reid and Feingold have already introduced legislation to cut off funding for the war. But the measure was seen as more of a counter to Bush’s veto threat than legislation that is likely to become law.

“New legislation will have to be introduced that can pass,” Groves said. One thing the president has going for him: Democrats will not delay war funding too long for fear of being accused of withholding money needed by troops in combat. In May, June at the latest, Congress will probably pass a war funding bill without mandatory withdrawal dates. It may come in as several smaller appropriations, or in one $93 billion sum as Bush requested.

But the effort to impose a war-ending timetable will not go away, Lilley said. Withdrawal deadlines will probably show up in the defense authorization bill that each house will vote on this summer, possibly in the regular annual defense appropriations bill as well.

Feingold told his Senate colleagues, “It is Congress’ responsibility to challenge an administration that persists in a war that is misguided and that the country opposes. “We cannot simply wring our hands and complain about the administration’s policy. We cannot just pass resolutions saying ‘your policy is mistaken.’ And we can’t stand idly by and tell ourselves that it’s the president’s job to fix the mess he made.

“It’s our job to fix the mess,” he said.