Wednesday, January 10, 2007

Congress Can Stop Bush's Iraq Escalation

The President's choices on continuing and escalating a war are not absolute.

Congress has the power to overrule the President's decisionmaking on Iraq if it only has enough votes to override a veto. Even without a supermajority, if an appropriations bill amenable to Congress cannot be passed, as a practical matter, a war (or escalation) must end if no appropriations are made to support it.

Obviously, Congress has the power of the purse, its primary power. An appropriation bill that denied funding for the Iraq War or an escalation of it would be within that power and have long precedent. Congress also has broad powers to regulate the armed forces. Article I, Section 8 sets forth the Powers of Congress, and among these are the following: the Power to “provide for the common Defence and general Welfare of the United States;” “To declare War;” "To raise and support Armies;" "To provide and maintain a Navy;" “To make Rules for the Government and Regulation of the land and naval Forces;” and, of course, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” These are some considerable powers over the waging of war.

As Prof. Marty Lederman discusses here, Senator Joe Biden is wrong in his recent statement that Congress lacks the power to compel Bush to stop his course.

Lederman ends with this:
Imagine a hypothetical situation in which an armed conflict has gone disasterously awry, resulting in a devastating and spiraling civil war in a major Middle Eastern nation and profound harms to both U.S. troops and our nation's long-term foreign interests. Over 70% of the U.S. public concludes that the President's proposal to escalate the conflict will only make the disaster worse, and is for that reason a terrible mistake. Over two-thirds of each House of Congress -- supermajorities that include numerous members of the President's own party -- are willing to vote to forbid him from taking such a fateful step.

Is it really imaginable that any reasonable constitution-writers -- let alone our own Framers, suspicious as they were of unchecked executive military power -- would disable the legislature from correcting the Executive's mistake under such circumstances?

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