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Balance of War Powers: The U.S. President and Congress Robert McMahon Council on Foreign Relations April 17, 2007 The U.S. Constitution gives Congress and the president different responsibilities in waging wars, but there have long been disputes about where one’s war powers begin and the other’s ends. This year’s showdown over the Iraq supplemental war-funding bill marks one of the biggest yet during an ongoing war. The House and Senate this year have passed measures calling for troops to pull out starting in 2008. President Bush has vowed to veto either one and has called on the Congress to send him a “clean” funding bill to sign. He says that by inserting timelines, Congress is trying to micromanage the conflict, which further ties the hands of the commanders in the field. The Democrat-controlled Congress, taking its mandate from the midterm elections and consistently low public approval ratings of the war, says it is acting on the wishes of the American people to end the war in Iraq. What are the president’s war powers? The U.S. Constitution empowers the president to wage wars as commander-in-chief while Congress has the power to declare wars and fund them. But chief executives from both major parties often differ with Congress over their ability to deploy military power. A number of experts believe presidents have demonstrated greater power to wage wars since the end of World War II. “This has been a fifty-year slide and Congress is paying the price,” says Louis Fisher, a specialist in constitutional law at the Library of Congress. “The president has been commander-in-chief since 1789, but this notion that they can go to war whenever they want, and [ignore] Congress, that’s a post-World War II attitude.” CFR Adjunct Senior Fellow Noah Feldman and his colleague at New York University, Samuel Issacharoff, wrote in March 2007 in Slate that the Constitution intended the president to have the power to wage war effectively. “In the modern era, no country—not even a parliamentary democracy—has been so foolhardy as to place a war under the guidance of a legislative body, rather than a single, unified command.” Professor Robert F. Turner, associate director of the University of Virginia’s Center for National Security Law, says President Bush’s decision earlier this year to “surge” twenty-two thousand troops into Iraq was well within his powers, adding that Congress “can say you can’t have money, but what they can’t do is say you can have money only if you fight a certain way. Bringing up troops from the rear is right at the core of the command function [of] presidential power.” But other experts point to established limits of presidential power during wartime, citing the U.S. Supreme Court’s 1952 ruling striking down President Harry S. Truman’s order to maintain operations of the country’s steel mills for national security reasons, which was found to be against the will of Congress. Some point to the Supreme Court’s 2006 Hamdan vs. Rumsfeld ruling,—which found the special military commissions established by the Bush administration were illegal—as stressing the shared wartime powers of the president and Congress. Susan Low Bloch, a constitutional law expert at the Georgetown University Law Center, says the framers of the constitution deliberately divided the war powers between the two branches to induce them to work together on such a vital issue. “I don’t know if they expected conflict, but they wanted coordination and cooperation and shared responsibility,” Bloch says. “I doubt that they wanted what we have right now.” Can Congress set timelines for a troop withdrawal? Scholars disagree. A group of constitutional experts wrote a letter to Congress in January 2007 that asserts Congress has “substantial power to define the scope and nature of a military conflict that it has authorized, even when these restrictions may limit the operations of troops on the ground.” Such actions, they said, include setting troop limits. But in a recent online debate with one of those signatories to the letter, Yale University’s Bruce Ackerman, former Bush administration Justice Department official John Yoo argued the main power of Congress was in controlling war funding, not deciding troop deployments or the plan to surge forces in Baghdad. “Congress is too fractured, slow, and inflexible to micromanage military decisions (LAT) that depend on speed, secrecy, and force,” Yoo wrote. A late twentieth-century example was the action by the Democrat-controlled Congress in the fall of 1983 setting up an eighteen-month time limit for U.S. troops already deployed as a peacekeeping force in Lebanon by President Ronald Reagan’s Republican administration. Within two weeks of the president signing that timeline measure into law, a suicide bombing destroyed the U.S. Marine barracks in Beirut, killing 241 U.S. service personnel. The Reagan administration withdrew its participation in the multinational force in Lebanon by the end of March 1984. What is the War Powers Resolution? The 1973 War Powers Resolution followed a period of growing congressional concern over the presidential use of military force. Among other things, the legislation, which withstood a veto by President Nixon, required that a president terminate combat in a foreign territory within sixty to ninety days unless there was congressional authorization to continue. It also sought to provide presidents with the leeway to respond to attacks or other emergencies. The measure was intended to provide more coordination between the executive and legislative branches on the use of force. It does not fully address the issue of winding down a conflict. What impact has the War Powers Resolution had on waging wars? Experts say it has had mixed results. Alton Frye, a CFR presidential senior fellow at the time, told the Senate Judiciary Committee in 2002 that the response to the act was disappointing. “The resistance of every president to the law,” he said, “beginning with President Nixon’s unsuccessful veto, and the Supreme Court’s refusal to provide a definitive ruling on the law’s constitutionality have left a worrisome cloud over legislative- executive relations in this crucial field.” The Congressional Research Service says that from 1975 through 2003, presidents submitted 111 reports as the result of the resolution, but only one—the 1975 Mayaguez incident— cited action triggering the time limit. It said the reports from presidents, which usually said their actions were “consistent with the War Powers resolution,” ranged from military operations like embassy operations to full combat like the 2003 war with Iraq, which Congress authorized. Fisher of the Library of Congress says there has been some acknowledgment from presidents of the law’s power. “I think in a lot of actions—in Granada [in 1983], in Panama in 1989—there seemed to be efforts to get things wrapped up by the sixty-day limit,” he says. What are the president’s options in the event of Congress cutting off funding? President Bush can veto any congressional attempts to set troop-withdrawal timelines, as he has vowed, and there is unlikely to be enough congressional support to override his veto. But in the end, Bush needs Congress to finance a continuing robust troop presence in Iraq. “Ultimately if the president doesn’t have the money he’s not going to be able to prosecute the war,” says Turner of the University of Virginia. Bush can use his bully pulpit to press Congress for support of troops in the field. Other measures include extending the missions of troops in Iraq, which the administration just announced on April 11, 2007. The Congressional Research Service says the Army has enough funds to maintain operations through the end of July. But Defense Secretary Robert M. Gates says the Army faces a “real and serious funding problem” if the supplemental measure is not approved soon. He said if the money is not received by the middle of May, the Army will cut back on the maintenance of equipment, as well as training for some brigades due to be deployed overseas. Some experts say the current standoff could come down to which political party cracks under pressure. Some Republican lawmakers may pressure the president for a troop reduction as the 2008 elections approach. There are also splits among Democrats as well, who still must reconcile the different bills produced by each chamber of Congress. Sen. Carl Levin (D-MI), the chairman of the Senate Armed Services Committee, said in early April that the Senate would not cut off funding for the war.
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