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Unringing the bell

There's a rather fascinating (at least, to me) discussion going around the blogosphere and the real world lately, inspired by the Democrats' "non-binding resolution" against the war. And it's a simple question:

Just what can Congress do, if it should choose, to end the US involvement in the fighting in Iraq?

The first time I encountered it was over at Peter David's (my favorite author and absolute barking moonbat of a leftist) site, where he was blunt: he had no idea what the answer is, so he was asking his readers to offer their opinions. Captain Ed offered his own opinion, and actually had a civilized discourse with Glenn Greenwald (or one of his sock puppets) about the matter. Ed apparently started out believing they did not, but now is not so sure.

I'm no Constitutional scholar or expert on the minutiae of the federal system, but I've found that I've got a slightly-better-than-average grasp of the Constitution and a fairly decent instinct on how things "ought" to be. With that disclaimer, I offer my opinion:

Yes, Congress can un-declare war, or in this case, amend or repeal an Authorization for Use of Military Force.

One of the key precepts of the Constitution is the checks and balances that keep any one branch of our federal government from taking too much power. While the President has the power to fight wars, it is limited (in theory) to only those wars Congress authorizes. Conversely, Congress could declare war against the Duchy of Grand Fenwick tomorrow, but it will be a hollow document if the President doesn't order the military to actually wage that war. As the saying goes, "it takes two to tango."

To continue the metaphor, I don't think there is such a thing as a solo tango. It takes the cooperation of both branches (or, at least, the approval of the president and the tacit acquiescence of the Congress) to continue the effort. If Congress were to decide that they've had enough and want to sit the rest of the song out, the President shouldn't be able to continue to tear up the dance floor.

To say that Congress can declare war, but cannot un-declare war, is to say that the declaration is a blank check to the Chief Executive, and I don't like that. If that were the case, then the wildest, most paranoid delusions of the most extreme barking moonbats would actually have a slim base in reality: a president could, by

However, simply issuing a "non-binding resolution" is utterly meaningless. It's the wishy-washy approach, something done simply to convey the illusion of taking action. My Christian friends would probably cite Revelation 3:15-16: "I know your works; I know that you are neither cold nor hot. I wish you were either cold or hot. So, because you are lukewarm, neither hot nor cold, I will spit you out of my mouth."

If Congress really wanted to end the war, I would suggest they simply pass a bill repealing the AUMF. It would say something like this:

"Whereas the Authorization for the Use of Military Force was for the objective of removing the Baathist regime in Iraq, and
Whereas said regime has been toppled; and
Whereas the former leaders of that regime are in exile, fugitives, imprisoned, or deceased;
The Authorization for the Use of Military Force has been fulfilled, and shall expire six months upon the passage of this Act."

That's the theory. In practice, though, it would be a bit tougher. They would need to have the measure pass both houses, against a likely Republican threat to filibuster. And if they do that, they very well might need to override a presidential veto.

Or not. It would be a struggle between Bush's commitment to fight the war versus his reluctance to wield the veto pen, and both have shown themselves to be formidable forces.

I read a book a few years ago -- "Balance of Power," by James Huston. It's not great writing, but it brings up some fascinating thoughts and observations about the interplay of the various government branches when it comes to war. The fine details of the act are convoluted -- since Congress has the exclusive power to declare war, can it do so without a Presidential signature? And if the president did sign, do they need his consent to un-declare the war? Certain measures Congress passes do NOT need Executive approval, such as articles of impeachment; do declarations of war (or, in this case, AUMFs) fall into that category?

I'm tossing the whole question out to the readership, because I simply don't know. I am asking, though, that the arguments revolve around the issues, not the particulars of this instance or the personalities involved. I've tried that before, with middling success, but I am ever the optimist.


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Comments (18)

It's a little bit tricky, b... (Below threshold)

It's a little bit tricky, because it depends on what "declaration of war" means. If the AUMF was a declaration of war, then Congress has the unilateral ability to undeclare the war in the same way they had the unilateral ability to declare the war. But if the AUMF was merely a law, then Congress would have to pass another law to change it. So the question is: was the AUMF submitted to the President for his signature? If so, the Congress has frittered away its power over when and where war can be waged (as they did in the AUMF anyway by giving the President the authority to go to war whenever he chose, pretty much) and they're SOL on ending it without a new law.

It's possible I don't have ... (Below threshold)

It's possible I don't have a clue what I'm talking about, but reading this:

"Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill."

- makes me think the President has to sign it or Congress has to override his or her veto to put it into effect. "Congress" has the power to declare war, meaning both houses. Impeachment is the House only, so no Presidential OK needed. Removal following impeachment is the Senate only, so no Presidential OK needed.

that's how I read it anyway, but maybe it's 'evolved' into something else by now.

The concept of declaring wa... (Below threshold)
bill:

The concept of declaring war and then saying just kidding must be a Democrat prank. Where exactly do you get the moral authority to tell the troops who sacrificed they died for a prank?

Wait... there was an offici... (Below threshold)
umm...:

Wait... there was an official declaration of war for the gov't to "undeclare"? When?

Here's where you clear up a... (Below threshold)
Publicus:

Here's where you clear up another concern among some Democrats----the belief that the Republican's desire for a "unitary executive" is a plan for to abolish checks and balances.

Whatever the Bush administration position is, Jay Tea is clear that he believes in checks and balances...and we can all try to figure out where those lines are (or should be) drawn.

I have had a problem with AUMF because it seemed to me that Congress should have clearly declared war, if that's what it meant to do. If memory serves (and too often is does not!), the AUMF pretty much punts over Congress' responsibility and says to the President----go to war if and when you're ready. It may seem like a small thing, but to me it's similar to Congress saying: you take over legislative power and responsibility for awhile.

Makes me uncomfortable; I like each branch to jealously guard it's powers...even when they agree on policy.

The problem is that congres... (Below threshold)
arcman:

The problem is that congress, be it Republican or Democrat, are too chicken to stick their necks out and authorize a real war. They want to put the President on the spot, so that if things don't go well they have a scapegoat to blame. Look at the "Bush lied, people died" crowd; the "if I knew then what I know now" people; and the "when Clinton lied, no one died" folks. Checks and balances are the foundation of our governmental system, but that hinges on congress being responsible enough to play their part in the whole scheme of things. I have never been a fan of term limits, because I have always hoped that the electorate would vote useless politicians out of office, but if it will create a system that will cause congressmen and senators to start to be responsible to the people again, I am all for it.

I'm with Jay in that I thin... (Below threshold)
Cousin Dave:

I'm with Jay in that I think that Congress would have to pass legislation in order to repeal the AUMF. I'm also with Publicus in that I'm a bit uncomfortable with the whole AUMF concept in the first place; it just feels like it's an extra-constitutional mechanism. But that's the way it's done these days. Note that the AUMF is actually a more restrictive mechanism than a declaration of war. The AUMF can place limits on the objectives to be pursued or the types of operations to take place (as in the Somolia example that Glenn and Captain Ed are discussing), which a declaration of war cannot do.

Another thing to note, though, is that as a practical matter, the whole issue of repealing an AUMF is rather moot. If Congress wishes to repeal the authority, there is already a mechanism with precedent: placing restrictions in the next year's DoD budget authorization. If you'll recall, Congress used this mechanism to cut off military involvement Nicaragua in the mid-'80s.

Cousin Dave --I've... (Below threshold)
Publicus:

Cousin Dave --

I've heard Chuck Shumer say that restricting funds for the "surge" is tricky because the Congress doesn't have that much control over how the budget they pass is spent within a department. I'm not sure how that would complicate things if Congress tried cutting back funding to pull all troops out. I suspect it's doable, but difficult legislation to write.

re: 'why didn't they just d... (Below threshold)

re: 'why didn't they just declare war'. If I had to hazard a guess I'd say it was because they couldn't just say "we hereby declare war upon Germany" or wherever - we certainly didn't want to say "we declare war on Iraq" since what we really were trying to do was remove the government head and 'liberate' the Iraqis. Anybody remember if a reason was specifically stated at the time? It wasn't that long ago, you'd think someone said something at the time.

Well congress could try to ... (Below threshold)
Mac Lorry:

Well congress could try to repeal the AUMF or they could try to cut off funding, but in any case Democrats would then be seen as putting their plan for Iraq in place. If it goes well they would get the credit, but if it goes bad they get the blame for many years to come. For example, say there's a WMD attack on the U.S. in 2012. With or without any direct links to Iraq, Republicans will be saying the attack was the result of Democrats interfering with Bush's plan. It's that threat that keeps the Democrats from asserting any real power over Bush in prosecution of the war. That's why they are talking about a non binding resolution, but even that carries risk if Bush opposes them and then succeeds in Iraq. The Wizbang piece "Congress and Cowardice" by DJ Drummond on January 26, 2007 rings true.

Ok, yes, it was discussed a... (Below threshold)

Ok, yes, it was discussed at length (declare war vs. aumf). A quick search turns up plenty of hits about the debate at the time (after WH lawyers had already put together their case for why they didn't need a declaration of war from Congress, Bush cut the bickering off by saying he would go to Congress for authorization, making the point moot, well, that point anyway). There was that lawsuit trying to argue he had no authority to invade Iraq (also one against his father for the predecessor to this whole mess).

"The question of the president's war-making powers and the tension with the legislative branch over the issue have confounded politicians and scholars almost from the founding of the Republic. The United States has fought five legally declared wars.

By contrast, Deputy Assistant Attorney General Gregory Katsas told the appellate panel last week, U.S. forces have fought more than 100 times without a congressional declaration of war. Since World War II, the United States has intervened militarily in Korea, Vietnam, Haiti, Lebanon, Nicaragua and the Persian Gulf region." Link for this quote can be reached through my name below. So, long story short, going to 'war' without a formal declaration is hardly breaking new ground. Last time we went that route was 1941.

Jay Tea, Any part... (Below threshold)
Paul:

Jay Tea,

Any particular book by Peter David you would recommend to start with? Always looking for new things to read.

Apparently, John McCain thi... (Below threshold)

Apparently, John McCain thinks Congress has the ability to mandate a withdrawal. This was dug up by Glen Greenwald.

What is the criteria and what should be the criteria is our immediate, orderly withdrawal from Somalia. And if we do not do that and other Americans die, other Americans are wounded, other Americans are captured because we stay too long--longer than necessary--then I would say that the responsibilities for that lie with the Congress of the United States who did not exercise their authority under the Constitution of the United States and mandate that they be brought home quickly and safely as possible.

(As a side note it's interesting to read that entire post by Greenwald and see all the comments from Republicans advocating a cut and run from Somalia. What's ironic is that these are the same people who now cite Somalia as an example of spinelessness that encouraged bin Laden and Al Qaeda).

To say that Congr... (Below threshold)
Anon Y. Mous:
To say that Congress can declare war, but cannot un-declare war, is to say that the declaration is a blank check to the Chief Executive, and I don't like that. If that were the case, then the wildest, most paranoid delusions of the most extreme barking moonbats would actually have a slim base in reality: a president could, by

First, that wasn't me that cut off that quote mid sentence - it's that way in your post.

Second, you may think that if Congress has the right to declare war, then they must have the right to undeclare it; but, wouldn't that same logic apply to the formation of our country? If a state can join the Union, then surely they can leave it as well.

As we all well know, however, that is not the case. The constitution isn't necessarily symmetrical in all regards.

Larkin, you are being a bit... (Below threshold)
Cousin Dave:

Larkin, you are being a bit disingenuous. The discussion around the Somolia AUMF that Greenwald relates has to do with the fact that the Somolia AUMF (which Greenwald himself linkd to) was very limited in scope; basically, it only authorized missions to protect humanitarian relief efforts. The argument in Congress was that Clinton had exceeded the authority of the AUMF. However, I do recall that even at the time, the main Republican argument in Congress was not that the troops should be pulled out, but that Clinton needed to come back to Congress for an expanded AUMF. By comparison, the AUMF for the Iraq War was quite broad.

(In fairness, I should point out that Clinton's counter-argument was that he was treaty-bound to take the actions he took because it was requested by NATO. It raises the whole topic of what the Constititional implications are when treaty obligations get crosswise with U.S. law, but that's for another thread.)

Now, I will say that if John McCain thinks that Congress has the authority to unilaterally order a withdrawal from Iraq against the Commander-in-Chief's wishes, then he was wrong in 1997 and he is wrong now. I can't possibly see how such a thing could be constitutional. It would effectively render meaningless the President's role as Commander-in-Chief if Congress could issue orders to the military without the President's consent. It would also be wildly inconsistent with the separation of powers doctorine that the Founders were so careful about everywhere else.

Publicus: Frankly, I find Shumer's explanation to be just plain whining. Democrats in 1986 didn't have any problem crafting DoD budget authorizations so as to cut off military aid to fight the Sandinistas in Nicaragua. That's what the whole Oliver North brouhaha was about -- the accusation that North's group had, effectively, engaged in budgetary money-laundering and reallocated funds to a purpose which was specificlally not authorized in the budget. (As best as I understood the defense, the issue was that the continued Contra aid was funded after the DoD cutoff by the CIA, which being an independent agency was not impacted by the restrictions in the DoD authorization.) Putting it bluntly, it looks to me like some Dems are trying to find an extra-constitutional way to pass legislation without having to send a bill to the President.


The reality is that the Hou... (Below threshold)
John S:

The reality is that the House can bluster all it wants. Democrats are about 12 votes short of controlling the Senate.

Cousin Dave, From ... (Below threshold)

Cousin Dave,

From the joint resolution for the authorization of the use of US armed forces against Iraq.

SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

Item #1 has clearly been satisifed since Iraq's WMD programs have been eliminated, and the Hussein regime deposed. The country no longer poses a "continuing threat" to the US (although it never did in the first place).

Item #2 has also been satisfied.

My reading of this says that the President no longer has authorization. In fact, Senator John Warner (R-VA) recently suggested as much when he said the President should go back to Congress and get a new authorization for the use of force in Iraq. That new authorization should give explicit authority to the President to intervene in the ongoing civil war in Iraq.

Larkin -- I'm sure w... (Below threshold)
ijosha:

Larkin --
I'm sure we are going to hear an argument that the current state of affairs in Iraq continues to pose a national security threat (self fulfilling prophesy?) and therefore item #1 is still in effect.




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