Seven Questions: Can Congress Stop the Iraq War?Posted February 2007
http://www.foreignpolicy.com/story/cms.php?story_id=3698When President Bush announced he was sending more troops to Iraq, many in Congress rushed to condemn the move. For this week’s Seven Questions, FP asked Bruce Ackerman, a top legal scholar at Yale University, what Congress can do to back up its words with deeds.
FOREIGN POLICY: The U.S. Senate is debating a resolution to condemn U.S. President George W. Bush’s troop increase in Iraq. What are the legal implications?
Bruce Ackerman: None. What matters are the president’s two budgetary requests, because the president is going to have to sign something. There’s his supplemental one, which is supposed to get the Iraq War through October 1, and his Iraq request for the fiscal year 2008. With most other resolutions, even if it were not explicitly nonbinding (as the Warner resolution is), and even if it took the form of an instruction to the president, he would just veto it. So, to a significant degree, the questions of constitutional power are moot in every context except the budgetary one, where the president is going to have to sign something.
FP: So the only way for Congress to influence Iraq policy is through its budgetary power?
BA: That’s right. When Congress appropriates money, it can attach riders that can contain instructions saying, “We’ve spent $350 billion, and we hereby tell you that you can spend $150 billion more.†You can then translate that into a time limit by dividing by, say, $9 billion a month in order to get a figure for the number of months. The Congressional Budget Office could be the referee, since it’s already keeping tabs on how much money the government is spending on the military and in Iraq.
Or, you can attach an instruction of the kind that is presently more favored in Congress, saying, “You have to reduce the troops by X thousand in six months.â€
FP: Wouldn’t that be considered micromanaging the commander in chief’s duties?
BA: That’s why my proposal has an advantage. Nobody can argue that simply saying, “You will not spend more than $500 billion on the Iraq war†is beyond the power of Congress. No argument at all. There will be arguments if Congress explicitly says, “You have to get out in 10 months.†But one is really the other.
Going to the constitutionality of micromanaging, in fact the bulk of scholarly opinion is clearly on one side. Congress has very broad powers to control the exercise of military force. And it is quite true that Congress hasn’t used these powers too frequently for prudential reasons—wisdom—but that doesn’t mean they don’t exist.
On occasion, Congress has done very, very strong things indeed. The most striking example is in the aftermath of the Civil War. Congress passed something called the General of the Army Act, which specified that the president couldn’t order his commanders in the South without having his orders countersigned by Ulysses S. Grant, who was then the general of the Army. That represented the high-water mark of congressional control of the Army. More recently, Congress forbade the use of troops in Cambodia, and then of course there was the Boland Amendment. We can argue the wisdom of these things, but there has not been an occasion where they were disobeyed. In any case, it’s better to say, “Here’s your money. You spend it in a wise way to try to win, and if you can’t win, get out prudently,†rather than have an explicit timetable.
FP: Let’s say Congress goes ahead and does what you suggest. What are the Bush administration’s options if it wants to stay in Iraq? Isn’t funding—especially in the Pentagon—somewhat fungible?
BA: No. There’s no question on saying, “You will not spend more than X dollars a month on a particular item.†The Pentagon budget is full of items like that. “You will not spend more than $10 billion on the antiballistic missile system.†They have no options. There’s no constitutional claim made by anyone in American history that the president of the United States, in any capacity whatsoever, can spend money without an appropriation from Congress.
The commander in chief may or may not have the power to ignore Congress when it says, “Don’t fight in Baghdad; fight in Basra†or “Don’t send more than 120,000 troops in.†Those are strategic decisions. But the idea that he has the right to spend money that has not been appropriated is unthinkable.
FP: What about funding for other parts of the mission in Iraq, like Iraqi security forces?
BA: Well, that all depends. For example, say the president has just made a request for $1.2 billion for more civilian funding, and let’s imagine Congress turns him down. No one would suppose he could just take the $1.2 billion off of some other budget and spend it anyway. I mean, this is just not something that you do.
FP: Speaker of the House Nancy Pelosi has told her colleagues that if President Bush wants to take the country to war against Iran, the House of Representatives would take up a bill denying him the authority to do so. Does the House have the ability to do that?
BA: The president has to get another authorization for a war against Iran. It isn’t up to Nancy Pelosi or the House to prevent him; he doesn’t have the constitutional authority to just expand the war.
He does not have the authority to unilaterally invade Iran. I just want to hear what the arguments on the other side are. But the authorization of the use of force after 9/11 doesn’t authorize that.
FP: What about actions short of invasion: air strikes or hot pursuit?
BA: Air strikes would be an invasion. It’s an act of war of an unambiguous variety. I think that the burden is very much on the president of the United States to ask for explicit authorization for an act of war against Iran. On every major military incursion, there is an elaborate ballet where the president says he has the power to do it and the Congress says, “You don’t have the power to do it.†But both in the case of the first Iraq war and the second Iraq war, the president did in fact go to Congress for authority.
On a major incursion into another large Middle Eastern country, I believe that, when push comes to shove, the president will once again request the explicit authorization of Congress. When he was contemplating the invasion of Iraq, he was in a much stronger position politically—and he was still obliged to request authorization. And the same thing would happen again.
Bruce Ackerman is a professor of law and political science at Yale University and the author of Before the Next Attack: Preserving Civil Liberties in the Age of Terrorism (New Haven: Yale University Press, 2006).
