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THE NATION

In Wartime, Who Has the Power?

David Plunkert

By JEFFREY ROSEN

Published: March 4, 2007WASHINGTON

THE Constitution seems relatively clear. The president is the commander in chief, and he

has the power to deploy troops and to direct military strategy. Congress has the power to

declare war and can use its control over the purse to end a war. But it has no say overhow the war is actually prosecuted.

That poses a problem for Congress, as it debates the course of the Iraq war. Democratic

proposals to check President Bushs increasing unpopular war range from SenatorBarack

Obamas phased redeployment of all combat troops out of Iraq by March 3, 2008, to

Representative John Murthas attempts to impose specific standards for the training and

equipping of troops.

Regardless of how these proposals fare politically, they raise serious constitutional

questions that could affect not only the conduct of the Iraq war, but also the balance ofpower between Congress and the president in wartime.

Legal scholars both critics and supporters of the Iraq war say that if Congress tries

to manage the deployment and withdrawal of troops without cutting funds, the

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presidents powers as commander in chief would be encroached, perhaps leading to aconstitutional confrontation of historic proportions.

If there were to be a binding resolution that said troops had to go from 120,000 to

80,000 by April 15, Congress would be, in my view, transgressing on the conduct of a

military campaign, says Samuel Issacharoff, a law professor atNew York University.

Congress cant tell the president to charge up the east side of the hill rather than thewest, which is the definition of the presidents military authority.

So how, exactly, can Congress assert power over the war, beyond its ability simply to

pull the plug on its financing? History suggests that Congress has found ways of checking

the president in the past without encroaching on his power as commander in chief. And,

history suggests, as well, that neither side is that eager for a constitutional showdown.

There is little dispute that Congress could, if it had the political will, end the war in Iraq

tomorrow by using its power over appropriations to cut off funds to the troops. Congress

could easily check the president, says W. Taylor Reveley III, the dean of William and

Mary School of Law and author of War Powers of the President and Congress.

If Iraq continues to go badly or if it looks like the president might actually use force in

Iran, I can easily see Congress passing something like the Cambodian or Vietnam

spending cutoffs, which would force the setting of a timetable for withdrawal that was

pretty brisk, he said.

If Congress used its appropriations power in this way, even the most vigorous defenders

of executive power agree, President Bush would have to acquiesce. He would have to

comply, and he would comply, says John Yoo, theUniversity of Californiaat Berkeley

law professor who, as a Bush administration official, defended the presidents authority

to act unilaterally. According to Professor Yoo, Congress could immediately cut funds, or

could order a phased withdrawal by authorizing a fixed amount of money each month for

specified numbers of troops.The idea that the funding tool is too blunt is a view held by people who have neverworked in Congress, he says. It can be a scalpel as well as a baseball bat.

The problem is not that Congress lacks the constitutional power to cut off funds, but thatit may lack the political will to do so.

I think its inconceivable that Congress will cut off appropriations, because no one

wants to leave people on the field without support, says Michael Gerhardt of theUniversity of North CarolinaLaw School.

Congress, however, has other cudgels. During the War of 1812, Federalist critics of

President James Madison forced the resignation of his secretary of war, and, decades

later, the House passed a resolution censuring President James Polk for unconstitutionallybeginning a war with Mexico.

During the Civil War, CongressionalRepublicanswanted Lincoln to fire Gen. George B.

McClellan and prosecute the war more aggressively. But they never tried to control actual

troop movements. Instead, Congress tried to shame the Union generals into fighting byhauling them repeatedly before Congressional committees.

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It bordered on harassment, and Lincoln resisted some of the excesses, but even then,

Congress never tried to issue orders about the deployment of troops, says Professor

Issacharoff.

Congress, of course, could assert itself in similar ways today, according to Professor

Gerhardt. Congress is entitled to have oversight hearings to see how well things are

going, and to figure out where we should go from here, he says.

Changes in technology also make it easier for Congress to micromanage military

decisions if it chooses to do so. In the 19th century, simply to send a command and find

out what happened in the battle took weeks, says Professor Issacharoff. So neither

Congress nor the president could micromanage. Now you can have battlefield

commanders in a speakerphone in the well of Congress you could have 535 generalsshouting instructions.

Congress would also be perfectly competent to examine civil liberties questions, like the

restoration of habeas corpus for detainees held at Guantnamo Bay. It could pass

resolutions opposing the war effort over Republican opposition, as Democrats have

proposed to do. It could demand compliance with international norms about how the waris conducted.

But lets say Congress passed a binding resolution that reduced troop levels without

actually cutting off funds. What then?

Whats likely to happen is that Congress will assert its power, and the executive will

resist through delay, redeployment of troops elsewhere or simply disregarding Congress,

Professor Issacharoff says. It will never be presented to a court, because when both

branches are involved in disputes about war and claim overlapping powers, the courtstend to back down.

Dean Reveley agrees. These disputes about the powers of the president and Congress in

wartime are waged with almost theological passion and conviction and the SupremeCourt rarely intervenes, which is why war powers are still so murky, he says. Every

time weve gotten involved in an unpopular war, which has been all our wars except the

two World Wars, there has been an enormous amount of bickering between the president

and Congress when it didnt come out the way we wanted. Sometimes presidents have

acted, Congress said Dont do that, and the president acceded, as in Vietnam. Butmostly Congress has stood on the sidelines and complained.

In other words, a constitutional crisis may not be the inevitable outcome.

I think this will be resolved politically, as it has been in the past, and either the president

or Congress will back down, Professor Issacharoff says. My sense is that its more

likely to be Congress, because nobody wants to assume responsibility for managing adisaster.

Even if President Bush wins a constitutional confrontation, Congress may react by

asserting its powers against future presidents. Congress will be much more careful in the

future about authorizing force without restrictions on presidential power, says Jack

Goldsmith of Harvard Law School. Every action on each side tends to provoke a

counterreaction, which is probably what James Madison wanted.