Kennedy, Congress, and the Surge

Senator Edward Kennedy yesterday outlined in a speech to the National Press Club and a column at the Huffington Post his arguments for a bill to “prohibit the use of funds for an escalation of United States Forces in Iraq above the numbers existing as of January 9, 2007— absent specific congressional authority to do otherwise. His stated goal is to “reclaim the rightful role of Congress and the people’s right to a full voice in the president’s plan to send more troops to Iraq.”

This has caused a lot of sturm und drang across the political spectrum. Many on the Left are hailing this, arguing that “stopping escalation is why Democrats were elected to Congress” and urging readers to “show support for Congress to stop more useless slaughter.” Many on the Right is calling it an attempt to “rewrite both the letter and spirit” of the Constitution, “a recipe for disaster cooked up by an unaccomplished fool who has never done any great service for America,” and even “caving to al Qaeda.”

Does Congress have the Constitutional power to limit the number of troops sent to Iraq? Big Tent Democrat argues that the Congress’ de facto declaration of war in October 2002 Kennedy’s proposed law “would be an unconstitutional violation of the separation of powers, impinging on the President’s power as Commander in Chief in Wartime.” The Center for American Progress, though, documents extensively numerous instances where Congress has made similar restrictions in the past. I’m not an attorney, but there’s no obvious reason why the current authorization would be legally/Constitutionally different from the Tonkin Gulf Resolution that authorized war in Vietnam.

The Constitution created, in Edward Corwin’s famous formulation, “an invitation to struggle for the privilege of directing American foreign policy.” The Congress has the authority to declare war, set the size of the armed forces, and controls the purse strings. The President is the commander-in-chief of those forces and exercises day-to-day operational control, subject to the oversight of the various congressional committees charged with raising the army and navy and allocating funding.

As Steven Taylor observes, the main obstacle is not Constitutional but practical: “such action would require substantial bipartisan resoluteness on the issue.” It’s pretty clear that does not exist.

Even with public opinion rather solidly against escalating the war in Iraq, there would be an instant backlash. Most Democratic leaders understand this. As Slate‘s John Dickerson observes, “They don’t want an effort to stop funding for the new strategy to be misinterpreted as a lack of support for American troops.”

Teddy Roosevelt demonstrated this a century ago in a similar dispute:

The head of the Senate Committee on Naval Affairs announced that the fleet should not and could not go because Congress would refuse to appropriate the money—he being from an Eastern seaboard State. However, I announced in response that I had enough money to take the fleet around to the Pacific anyhow, that the fleet would certainly go, and that if Congress did not choose to appropriate enough money to get the fleet back, why, it would stay in the Pacific. There was no further difficulty about the money.

Congress has the power to do what Kennedy wants. It almost certainly does not have the political will.

UPDATE: A slightly revised version of the above has been published at HUMAN EVENTS.

FILED UNDER: Blogosphere, Congress, Iraq War, Published Elsewhere, US Constitution, , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies 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.


  1. Triumph says:

    Kennedy should be transferred to al-Maliki’s custody immediately.

  2. cian says:

    While it is the president’s war it is being waged at the peoples’ expense and no matter how you skin the November election, the people have spoken- wind down with what little honour is left to muster and do your best for the ordinary Iraqi caught up in this conflagration of America’s making, but no more US lives lost for a cause that no longer makes any sense to a resounding majority of our citizens.

    There is no winning to this war. America’s involvement is over (put it in brackets- 2003-2006). The battle is now between Shia and Sunni. A Shia Saddam will appear (or has already, as many believe, in the shape of Muqtada al-Sadr) and the Sunni will be persecuted. To withdraw leaving millions of innocent Iraqis at the mercy of raging sectarian gangs is dishonourable and a disgrace. To continue sacrificing the lives of American soldiers for what can only be described as a face saving exercise for this president and his supporters, would be nothing short of criminal

  3. Triumph says:

    the people have spoken- wind down with what little honour

    Uhh..nice try. The American people would never speak about “honour.” What are you, Canadian?

    Stop trying to speak for Americans–your weird spelling exposes you as an agent of a foreign government.

  4. Anderson says:

    Apropos of the “chicken hawk meme” post, The Onion presents a headline we won’t see in reality any time soon:

    800,000 Privileged Youths Enlist To Fight In Iraq

    “They don’t have these recruitment centers where I live,” said Daniel Feldman, 26, who resides in the affluent neighborhood of Brookline, MA and recently passed his bar exam. “I didn’t realize you could just sign up, but now that I do, all of my friends from law school, yoga class, and temple are going to join, too. And not the Reserves either. We’re talking down and dirty, right on the front lines.” * * *

    U.S. Gen. John Abizaid, who has in the past argued against a timetable for withdrawal from Iraq, now says that with the influx of nearly a million troops expected to be on the ground Feb. 1, the region should be stabilized within six weeks.

  5. Wayne says:

    It amazing that the Dems are claiming that the people voted for so many of these specifics policies. I don’t remember most of the Dems running on it before the election. About all the ran on was “it is time for a change” without ever spelling it out exactly how the were going to change it.

    Most of the pick-ups were from so call conservative Democrats.

  6. MinorRipper says:

    So let me get this straight: Bush is now defying the Baker Report, Congress, the military, and the American public by escalating the war…Forgive me for not brimming over with confidence…

  7. Pug says:

    Most of the pick-ups were from so call conservative Democrats.

    No they weren’t, Wayne. In more conservative parts of the country the seats picked up by Democrats were mainly won by moderate-to-conservative candidates. However, they were still Democrats. The seats won in the Northeast and California were won by more liberal Democrats. Saying conservative Democrats won all the seats picked up is just conservative spin.

    Are you attempting to make the argument that the elections were an endorsement of GWB’s Iraq policy but people just decided they liked Democrats more for some reason? It’s time for a change meant it’s time to send more troops to Iraq?

    Seems like a lot of Republicans, including the president, don’t give a damn about election results or Baker Commissions or anything else. If thngs in Iraq in 2008 are the same or worse, it’s look out below for Republicans.

  8. I think this is a prime example of constitutional struggle and politics. If we are really wrong to be in Iraq, then congress has two strong levers to pull. One is cutting funding and the other is impeachment. If we aren’t wrong to be in Iraq, then congress can pass resolutions to ‘advise’ the president, but they have to recognize that the constitution gives the control on how we fight the war into the president’s hand. The people who drew up the constitution knew this first hand from their experience in the revolutionary war and the continental congress.

    But if you can’t make the case that it is wrong well enough to get the votes to cut funding or impeach, then you need to step back and ask the question who benefits from trying to joggle the president’s arm during a war. And if you are playing petty politics when such high stakes are on the table, is there any reason to wonder that calmer heads are starting to appear now that the democrats got what they asked for in gaining control of congress.

  9. M1EK says:

    The 2002 resolution was most definitely not a de-facto declaration of war. It was, paraphrased, “we authorize you to use the threat of force to make this guy live up to his obligations”.

    Since, as it turned out, he was living up to the obligations we cared most about (not having WMDs), it’s arguable whether it should even still be considered in effect at all, much less a de-facto open-end declaration of war.

  10. McGehee says:

    The 2002 resolution was most definitely not a de-facto declaration of war. It was, paraphrased, “we authorize you to use the threat of force to make this guy live up to his obligations”.

    Well, that’s rich. So we were supposed to threaten him to get him to show that he didn’t have WMDs, (which he refused to do — claiming it while obstructing the inspectors doesn’t qualify as “showing”) and when he refused to do what he … refused to do, we were supposed to do…what again?

    Threaten him some more?

    Yeah, that makes all kinds of sense. Only a Democrat-controlled Congress would have done such a thing.

  11. Anderson says:

    So we were supposed to threaten him to get him to show that he didn’t have WMDs

    Well, he did deliver that report to the UN; the White House mocked it at the time, but didn’t it turn out to be, um, true?

    Besides which, how could Saddam prove a negative? There are *still* people who think the WMD are in Syria or such.

  12. Barry Jones says:

    If Kennedy is so concerned with the welfare of American citizens and wants to investigate something ; start with Sandy Berger and find out what top secret information he stole from the security archives ! Can you imagine his outrage if this were Condi Rice stuffing stolen secret security documents in her “socks” ! Oh` the New York Slimes wiping-paper would be all over this one if it were Condi or anyone other than a socialist that the liberal bias` New York Slimes supports or worships !! God Bless America !