Today's Article
Can Congress
legally limit Bush's
war powers? You'd
better believe it...
legally limit Bush's
war powers? You'd
better believe it...
The American Spark
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How Congress Can Rein In Bush's War Powers In Iraq
By Cliff Montgomery - Feb. 22nd, 2007
The Congressional Research Service (CRS) creates numerous fine reports on government issues, and its
Jan. 27th, 2007, report on Congressional authority to limits Bush's war powers in Iraq is no exception. Here's
a few of the most direct paragraphs quoted below, with our analysis at the end:
"President Bush’s announced plan to increase the number of troops participating in military operations in Iraq
has raised questions regarding Congress’s authority to limit or possibly terminate the U.S. military role in Iraq.
"It has been suggested that the President’s role as Commander-in-Chief of the Armed Forces provides
sufficient authority for his deployment of additional troops, and any efforts on the part of Congress to intervene
could represent an unconstitutional violation of separation-of-powers principles.
"The question may turn on whether the President’s proposal is a purely operational decision committed to the
President in his role as Commander-in-Chief, or whether congressional action to prevent the carrying out of the
proposal is a valid exercise of Congress’s authority to allocate resources using its war powers and power of the
purse.
Constitutional Provisions
"At least two arguments support the constitutionality of Congress’s authority to limit the President’s ability to
increase troop levels in Iraq.
"First, Congress’s constitutional power over the nation’s armed forces provides ample authority to legislate with
respect to how they may be employed. Under Article I, § 8, Congress has the power 'To lay and collect Taxes...
to...pay the Debts and provide for the common Defence,' '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 'To declare War,
grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and War,' and 'To make all
Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...' as well as
'all other Powers vested by this Constitution in the Government of the United States, or in any Department or
Officer thereof.'
"The power 'To Declare War' has long been construed to mean not only that Congress can formally take the
nation into war but also that it can authorize the use of the armed forces for military expeditions that may not
amount to war. While a restrictive interpretation of the power 'To declare War' is possible, for example, by
viewing the Framers’ use of the verb 'to declare' rather than 'to make' as an indication of an intent to limit
Congress’s ability to affect the course of a war once it is validly commenced, Congress’s other powers over the
use of the military would likely fill any resulting void.
"Secondly, Congress has virtually plenary constitutional power over appropriations that is not qualified with
reference to its powers in section 8. Article I, § 9 provides that 'No Money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law.' It is well established, as a consequence of these provisions,
that 'no money can be paid out of the Treasury unless it has been appropriated by an act of Congress' and that
Congress can specify the terms and conditions under which an appropriation may be used, so long as it does not
impose an unconstitutional condition on the use of the funds.'"
But there is another condition at play here, which the CRS failed to mention: that the Iraq War was based on
numerous lies and clear frauds, a swath of information the Bush Administration well knew to be without merit at
best, and downright false at worst.
Questions of war powers presume that the reasons for war are legitimate. But if the war itself is illegitimate, that
makes any further claim of presidential war powers null and void.
Thus Bush's continued claim of war powers in Iraq is like the town sheriff who argues that he has the legal right to
keep a man in prison for a committing a terrible crime, even after it becomes obvious that the evidence used to
arrest that man is a tissue of lies--all falsified by the sheriff 's office itself.
Such a false argument is known as a sweeping generalization: it claims that a certain concept is eternally valid,
even under those conditions and situations in which it clearly no longer applies.
Just as no town sheriff can claim to have the right to keep a man in jail when he had no right to put that man there
in the first place, no president can claim to have the rights of a commander-and-chief when he had no right to go
to war in the first place.
And yes, how Congress may legally deal with such presidential "errors" is discussed in the Constitution. We
need go no farther than the section on "high crimes and misdemeanors."
By Cliff Montgomery - Feb. 22nd, 2007
The Congressional Research Service (CRS) creates numerous fine reports on government issues, and its
Jan. 27th, 2007, report on Congressional authority to limits Bush's war powers in Iraq is no exception. Here's
a few of the most direct paragraphs quoted below, with our analysis at the end:
"President Bush’s announced plan to increase the number of troops participating in military operations in Iraq
has raised questions regarding Congress’s authority to limit or possibly terminate the U.S. military role in Iraq.
"It has been suggested that the President’s role as Commander-in-Chief of the Armed Forces provides
sufficient authority for his deployment of additional troops, and any efforts on the part of Congress to intervene
could represent an unconstitutional violation of separation-of-powers principles.
"The question may turn on whether the President’s proposal is a purely operational decision committed to the
President in his role as Commander-in-Chief, or whether congressional action to prevent the carrying out of the
proposal is a valid exercise of Congress’s authority to allocate resources using its war powers and power of the
purse.
Constitutional Provisions
"At least two arguments support the constitutionality of Congress’s authority to limit the President’s ability to
increase troop levels in Iraq.
"First, Congress’s constitutional power over the nation’s armed forces provides ample authority to legislate with
respect to how they may be employed. Under Article I, § 8, Congress has the power 'To lay and collect Taxes...
to...pay the Debts and provide for the common Defence,' '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 'To declare War,
grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and War,' and 'To make all
Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...' as well as
'all other Powers vested by this Constitution in the Government of the United States, or in any Department or
Officer thereof.'
"The power 'To Declare War' has long been construed to mean not only that Congress can formally take the
nation into war but also that it can authorize the use of the armed forces for military expeditions that may not
amount to war. While a restrictive interpretation of the power 'To declare War' is possible, for example, by
viewing the Framers’ use of the verb 'to declare' rather than 'to make' as an indication of an intent to limit
Congress’s ability to affect the course of a war once it is validly commenced, Congress’s other powers over the
use of the military would likely fill any resulting void.
"Secondly, Congress has virtually plenary constitutional power over appropriations that is not qualified with
reference to its powers in section 8. Article I, § 9 provides that 'No Money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law.' It is well established, as a consequence of these provisions,
that 'no money can be paid out of the Treasury unless it has been appropriated by an act of Congress' and that
Congress can specify the terms and conditions under which an appropriation may be used, so long as it does not
impose an unconstitutional condition on the use of the funds.'"
But there is another condition at play here, which the CRS failed to mention: that the Iraq War was based on
numerous lies and clear frauds, a swath of information the Bush Administration well knew to be without merit at
best, and downright false at worst.
Questions of war powers presume that the reasons for war are legitimate. But if the war itself is illegitimate, that
makes any further claim of presidential war powers null and void.
Thus Bush's continued claim of war powers in Iraq is like the town sheriff who argues that he has the legal right to
keep a man in prison for a committing a terrible crime, even after it becomes obvious that the evidence used to
arrest that man is a tissue of lies--all falsified by the sheriff 's office itself.
Such a false argument is known as a sweeping generalization: it claims that a certain concept is eternally valid,
even under those conditions and situations in which it clearly no longer applies.
Just as no town sheriff can claim to have the right to keep a man in jail when he had no right to put that man there
in the first place, no president can claim to have the rights of a commander-and-chief when he had no right to go
to war in the first place.
And yes, how Congress may legally deal with such presidential "errors" is discussed in the Constitution. We
need go no farther than the section on "high crimes and misdemeanors."