Congress and Warmaking

A Wall Street Journal editorial contends that efforts by the Senate Foreign Relations Committee to derail President Bush’s planned “surge” in Iraq is not only “feckless” but “unconstitutional.”

As Commander-in-Chief, the President has the sole Constitutional authority to manage the war effort. Congress has two explicit war powers: It has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003. It also has the power to appropriate funds.

There is a long and unsettled debate over whether Congress can decide to defund specific military operations once it has created a standing Army. We lean toward those who believe it cannot, but the Founders surely didn’t imagine that Congress could start dictating when and where the 101st Airborne could be deployed once a war is under way.

Article I, Section 8 of the Constitution outlines the enumerated powers of the Legislative Branch. Those relating the military affairs:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

That section also contains the so-called Elastic Clause:

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.

FindLaw’s annotation of the Supreme Court’s rulings on disputes arising from this section is, as usual, is excellent. It’s clear that the matter is quite complicated:

Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1397 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, Sec. 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1398 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1399 he listed the power ”to declare and conduct a war”1400 as one of the ”enumerated powers” from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Chase described the power to declare war as ”necessarily” extending ”to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.”1401 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1402 the Court referred to ”the war power” as a single unified power.1403

Footnotes hyperlinked in original. It strikes me as quite obvious, though, from even the plain text of the Constitution, that the Congress was expected to have substantial power about the conduct of war. Indeed, the idea that the chief branch of government was to have no say in the prosecution of a war once they declared it, is anathema to the idea of limited government with checks and balances.

Read the rest of the longish essay at FindLaw. There’s no doubt the issues are complicated. That’s the nature of the “invitation to struggle.” But, rather clearly, Congress has the right to have a say in the conduct of war.

FILED UNDER: Congress, Iraq War, Military Affairs, , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. legion says:

    Indeed, the idea that the chief branch of government was to have no say in the prosecution of a war once they declared it, is anathema to the idea of limited government with checks and balances.

    I was responding to Steven Plunk in an earlier thread along these lines, but this also sums up a lot of my thoughts. The President may be the CinC, but he can also be wrong. What if he can’t see that he’s wrong, or refuses to change course even knowing he’s wrong?

    An important factor in this discussion is the “what if” factor. One of the hallmarks of this administration’s disastrous mismanagement of Iraq is their refusal to consider the question “what if this doesn’t work” – even to open insults and accusations of supporting our enemies for even bringing up the question. Well, this is what it looks like:
    – The American people, in polls and then the recent elections, have told Bush they don’t agree with what he’s doing. Bush ignores them.
    – The polls, the People, and many senior military strategists and diplomats have told Bush his “stay the course” and “get a bigger hammer” plans won’t work. Bush ignores them.
    – Congress, enacting the will of the people who elected them, make speeches and pass non-binding resolutions underlining these ideas.

    What if this doesn’t work?
    – Congress may start jacking around with the Defense budget, or the “emergency requests” that come in every so often, since Rumsfeld wouldn’t let the military put any expenses for Iraq or the GWOT into their regular budget plans.
    – Congress can demand accountability and oversight of a wide variety of subjects, such as the honesty (or lack therof) of the intelligence they & the American people were shown to draw support of action in Iraq, the planning & award of contracts for the rebuilding of Iraq & other post-combat activities, and the transparency with which the government engages in this conflict.
    – And if the President absolutely refuses to heed the advice of others; if his actions are deemed so unreasonable that they threaten our very country, then the SecDef, and even the President himself, can be removed from office.

    _That’s_ your checks and balances.

  2. Edgardo says:

    And what the new majority with the complicity of some Republicans are now saying is that they are afraid of a Bush-led victory in Iraq. Please pay more attention to what’s going on in Iraq than to Congress (for example, what do you think about this story
    http://www.nysun.com/article/47363).

  3. Triumph says:

    Indeed, the idea that the chief branch of government was to have no say in the prosecution of a war once they declared it, is anathema to the idea of limited government with checks and balances.

    Indeed, the idea that the Wall Street Journal page knows anything about the Constitution is anathema to those of us who value basic common sense and rationality.

    I am not sure why you are even taking anything the WSJ editorial page says seriously.

  4. Tano says:

    Amen.

    One of the great mysteries of the world of journalism is how it is that such a fine newspaper – the WSJ, can have such an abysmally retarded editorial page staff.

  5. Triumph says:

    One of the great mysteries of the world of journalism is how it is that such a fine newspaper – the WSJ, can have such an abysmally retarded editorial page staff.

    My theory is that since there is no comics section in the WSJ–aside from the usually brilliant “Pepper and Salt”–the editorials have to fill the role of comic relief since they are consistently laughable.

  6. Michael says:

    And what the new majority with the complicity of some Republicans are now saying is that they are afraid of a Bush-led victory in Iraq.

    I don’t think anybody honestly believes that is a possibility. Even if victory in Iraq is possible using the current administration’s strategy, there is little chance that it can be realized in the next 2 years.

  7. djneylon says:

    my, my my,…what a low opinion some have of one of the few editorial pages in the nation that is not a soapbox for the Democratic Party…if those WSJ boys would just toe the line, why, we could give them the same respect we give the New York Times or the National Enquirer…oops, my bad, no editorial page in the Enquirer

  8. paul lukasiak says:

    Dear Mr. Joyner:

    Please stop making sense. Its much easier for me to think of you as just another wingnut whose opinions I can disregard while checking your liveblogging about the Libby trial.

    Thank you.

  9. Greg D says:

    Chief Justice Chase described the power to declare war as ‘’necessarily’’ extending ‘’to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.

    If fighting the “surge” doesn’t count as “interfer[ing] with the … conduct of campaigns”, I cannot imagine what would qualify.

  10. Steven Plunk says:

    So Congress can set up laws and rules in order to provide a structure for the military. I see no mention of Congress interfering with day to day or even strategic war planning. The elastic clause talks of making ‘laws’ for the execution of those responsibilities enumerated.

    The non-binding resolution is none of those. It has nothing to do with the structure of the military and it certainly is not a ‘law’ to be passed to help in the execution of congressional powers. It’s politics and while it may not be “unconstitutional” it certainly is outside of the enumerated powers set forth by the constitution concerning the armed forces.

    Leaving the question of constitutional behind the big question is the wisdom behind such a “feckless” statement. The resolution is a product of our media driven Congress. It is not binding, it emboldens our enemies while hurting the morale of our own soldiers, it serves only to put some senators faces on out television screens. It is all about TV.

    Democrats can disagree with war policy and work behind the scenes to enact change if they are serious. But a serious mood is lacking. Re-election drives policy and TV drives re-election.

  11. legion says:

    A non-binding resolution can be one of two things: a pointless piece of lip-service by a party (or even the entire Congress) that can’t actually directly control the situation, or a ‘shot across the bow’ to give fair warning that if the subject of the resolution isn’t fixed ASAP, stronger measures will be taken.

    I’m honestly not sure how much ability Congress has to force a change in thinking on the President; even if they have the power Constitutionally-speaking, they can’t do anything without a significant number of Republicans on their side, and that’s still a huge question mark.

    But ask yourself something: If – and I don’t necessarily mean Bush in Iraq, I mean any President in a military situation – if the President is on a dangerously wrong course, and if he cannot or will not change on his own, is full impeachment really the only tool available? Or are there/should there be other ways for Congress to force the issue?