A tale of co-equal branches of government during time of war.
Our constitution grants the President tremendous power when the country is at war. That’s a fact. Setting aside questions of legality, as it pertains to the invasion of Iraq, President Bush has jealously asserted this power. But he didn’t stop there. He coveted the power of Congress too. And with his effluent signing statements, the aid of a craven, stooge Congress—led by his own party, and the sheer audacity of the executive branch as a whole, he has managed to effectively dispense with the burden of congressional oversight altogether.
People are justifiably angry and confused by this blatant attempt to usurp legislative authority. Citizens are rightly appalled that even members of Congress themselves seem to think that neither the People nor their elected officials have power to match Bush’s own.
Good news. Bush is wrong and so are those that have come to believe we are incapable of bringing his recklessness to heel. We have the history to prove that Congress can regulate the enormous power conferred upon the office of the presidency in wartime, or Sword, with the power of Purse.
Id, meet Ego
According to the Congressional Research Service:
In modern times, federal courts have been reticent to decide cases involving war powers on the merits, including those involving appropriations measures. However, in discussing whether a particular challenge raises non-justiciable questions as involving matters textually committed to the political branches by the Constitution, courts have generally reiterated the understanding of a shared allocation of war powers. That is, it is generally agreed that Congress cannot “direct campaigns,” but that Congress can regulate the conduct of hostilities, at least to some degree, and that Congress can limit military operations without the risk of a presidential veto simply by refusing to appropriate funds."
There are several options available to a Congress that needs to rein in a feckless wartime president, some better than others. The Congressional Research Service notes that, "the use of funding cutoffs and restrictions to curtail or terminate the President’s use of U.S. military force abroad has proven to be much more efficacious in giving effect to Congress’s policy views in this area than has the War Powers Resolution."
The path to restoring sanity and balance is clear.
If Democratic leadership in this Congress is serious about taking action designed to ensure that America makes, "Not a precipitous withdrawal that ignores the possibility of further chaos. But an immediate shift toward strong regionally-based diplomacy, a policy that takes our soldiers off the streets of Iraq's cities, and a formula that will in short order allow our combat forces to leave Iraq,” then it’s time to use the mighty power of Purse.
It wouldn’t be the first time Congress flexed its muscle against presidential war powers. In fact, the Congress recently used congressional funding limitations to prevent or reduce U.S. military deployments overseas, under conditions far less demanding of immediate intervention:
Somalia. Section 8151 of the Department of Defense Appropriations Act for FY1994, P.L. 103-139;107 Stat 1418, signed November 11, 1993, approved the use of U.S. Armed Forces for certain purposes, including combat forces in a security role to protect United Nations units in Somalia, but cut off funding after March 31, 1994, except for a limited number of military personnel to protect American diplomatic personnel and American citizens, unless further authorized by Congress. Additionally, section 8135 of the Department of Defense Appropriations Act for FY1995, P.L. 103-335; 108 Stat. 2599, signed September 30, 1994, stated that “None of the funds appropriated by this Act may be used for the continuous presence in Somalia of United States military personnel, except for the protection of United States personnel, after September 30, 1994.”
Rwanda. Through Title IX of the Department of Defense Appropriations Act for FY1995, P.L.103-335 108 Stat. 2599, signed September 30, 1994, Congress stipulated that “no funds provided in this Act are available for United States military participation to continue Operation Support Hope in or around Rwanda after October 7, 1994, except for any action that is necessary to protect the lives of United States citizens.”
So, claiming it can’t be done won’t cut it.
And what about using the power of Purse to end or curtail funding for private contractors that provide military or paramilitary services in Iraq? There’s a good chance Congress can close the nation’s wallet to Bush there too.
According to the Congressional Research Service, "Although not directly analogous to efforts to seek withdrawal of American military forces from abroad by use of funding cutoffs, Congress has used funding restrictions to limit or prevent foreign activities of a military or paramilitary nature. As such, these actions represent alternative methods to affect elements of presidentially sanctioned foreign military operations."
In 1984, controversy over U.S. assistance to the opponents of the Nicaraguan government (the anti-Sandinista guerrillas known as the “contras”) led to a prohibition on such assistance in a continuing appropriations bill. This legislative ban is summarized below.
The continuing appropriations resolution for FY1985, P.L. 98-473, 98 Stat. 1935-1937, signed October 12, 1984, provided that “During fiscal year 1985, no funds available to the Central Intelligence Agency, the
Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or
indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual.” This legislation also provided that after February 28, 1985, if the President made a report to
Congress specifying certain criteria, including the need to provide further assistance for “military or paramilitary operations” prohibited by this statute, he could expend $14 million in funds if Congress passed a joint resolution approving such action.
There we have it.
Congress has no excuses to keep bowing in deference to Bush; it has exercised this power before and the American public elected them to do it again. Now.
Hat tip to Secrecy News, from the Federation of American Scientists Project on Government Secrecy.