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The president will devote part of the State of the Union speech on Tuesday to seeking a “surge” of support for his recently announced Iraq sequel. The day after, Congress is “boldly” expected to consider binding itself to something nonbinding. The president’s case is steeply uphill, while the inconsequentiality of Congress’ contemplated advisory course is oddly over the hill. Some White House remarks wrongly assume that Congress’ only role is to salute. Some congressional statements mistakenly think that it must follow orders. Both inclinations misstate the war power in a democracy. President George W. Bush is unquestionably right that a plan yielding stability in Iraq would reduce the terrorist risk to the United States. It is legitimately open to question whether what the president has proposed will produce the desired result. Indeed, lest the words “Baker-Hamilton Commission” lose all meaning, there is substantial public skepticism that another 21,500 military personnel for an indefinite period of time at a cost of $5.6 billion will be anything other than Iraq d�j� vu. The president’s plan is multilayered and deserves careful assessment before the president sends a single battalion or Congress counterattacks. Far too much pleading seems to be necessary to convince the Iraqis to do their part. This recalcitrance is especially troubling in so far as the newly deployed U.S. troops would be awkwardly embedded within these reluctant Iraqi ranks in a manner almost certain to confuse traditional lines of military authority. At a minimum, the proposed additional $1 billion in reconstruction aid ought to wait a fulsome explanation of how similar money was spent. An honest State of the Union would acknowledge America to be skeptical and anxious. It is imprudent to give these Democratic or Republican doubts a presidential back of the hand that such is tantamount to accepting defeat or to a legislative shrug that there is nothing to do about it. Neither is true, and opposition exists along the spectrum, ranging from those who advocate a bigger military footprint, including reliance upon air sorties � la Kosovo, to those who wonder what happened to meaningful diplomatic effort. If, after public examination, it is fairly concluded that the additional blood and treasure proposed by the president would leave the nation short of the president’s own objective — not to mention slight the concerns of his fellow citizens expressed in the midterm election — what is the constitutional way to correct course? On this question, the Democrats in the Senate are in curious disarray, with Sens. Joseph Biden Jr. (Del.) and Edward Kennedy (Mass.) sparring over the level of Congress’ constitutional authority. The former thinks Congress lacks authority to pass little more than a nonbinding resolution — a proposition that, if true, might explain why the Iraqis are uninterested in democracy. Kennedy is certain the legislature can require a reauthorization of the Iraqi effort in general, but this seems to throw nuance to the wind and to understate the president’s duty as commander in chief for an on-going military campaign. Similarly confused is the House of Representatives, where Rep. John Murtha (D-Pa.) proposes to limit funding for any troops not combat-ready. Military readiness, however, will be difficult to define objectively without treading on Article II discernment. SAYING NO As a textual matter, Congress’ appropriations power in the Constitution is broad enough to sustain a properly worded limitation on the use of military funding. Congress must merely avoid a level of specificity that could be construed as encroaching upon the tactical or strategic judgments allocated by the Constitution to the president. With respect to the president’s Iraq plan, Congress lacks the authority (or the necessary information) to countermand, for example, his military decision to focus on the security of Baghdad or to second-guess the readiness of the force. So too, Gen. Barack Obama’s inclination to redeploy to the Kurdish border or Afghanistan may be sound, but Oprah notwithstanding, it is not yet his call. But there is nothing precluding Congress from simply saying no to the president’s requested supplemental appropriation, or as Sen. Hillary Clinton (D-N.Y.) proposes, capping the number of troops to a pre-surge level. The War Powers Resolution of 1973 was intended to clarify the presidential and congressional roles in war making. Admittedly, it has not been fully effective because it was passed over President Richard Nixon’s veto, and no president has ever conceded its constitutionality. That said, no president has ever ignored it either, with every president reporting military interventions “consistent with” the resolution. In other words, presidents have sought to comply without admitting that they had the obligation to do so. For example, in the early 1980s, President Ronald Reagan sent Marines into Lebanon without complying with the resolution, while notifying Congress “consistent with” it. Reagan claimed the authority to engage in the intervention under his power as commander in chief. In response, Congress passed legislation that gave the Reagan administration 18 months of authority to keep troops in Lebanon. There was a political explanation for the 18 months — namely, neither the executive nor Congress wanted a direct confrontation on this subject in the midst of the 1984 election. The Beirut bombings and the massive loss of Marine life ultimately prompted withdrawal and made the constitutional issue moot. Nevertheless, the episode is surely more a practical acknowledgement than a denial of congressional authority. NIXON AND VIETNAM Since Vietnam has become Iraq’s uncomfortable analogy, what does its history reveal? In 1966, a State Department memorandum argued that Congress had manifested support for the war by passing appropriations sustaining its operations. The denial of funding presumably would show the opposite, and that is a significant executive concession. This was also the view of a federal district court that ruled in Velvel v. Johnson (1968) that Congress had the power — both political and constitutional — to terminate military action by restrictions on funding if it wanted to. If the executive can claim passage of appropriations as evidence of legislative support for a war, it follows that the denial of appropriations is a constitutionally permissible way for Congress to object to executive war making. Not every court signed on to this interpretation of the significance of congressional funding, however. In Mitchell v. Laird (1973), a suit by 13 members of the House of Representatives seeking to stop the Vietnam War, the U.S. Court of Appeals for the D.C. Circuit held that in voting to appropriate money or to draft men, Congress was not necessarily approving of the continuation of war, no matter how specifically the appropriation or draft act referred to a war. The D.C. Circuit reasoned that a member of Congress wholly opposed to the war’s commencement and continuation might vote for the military appropriation and for the draft measure merely because he was unwilling to abandon support of the troops already fighting. Said the D.C. Circuit, “[W]e should not construe votes cast in pity and piety as though they were votes freely given to express consent.” All this seemed to be headed for judicial resolution when, in 1973, Nixon began massive bombing in Cambodia. The bombing was controversial because it was after the repeal of the Gulf of Tonkin resolution, which had seemingly authorized the Vietnam conflict, and it was also after the cease-fire agreement in Paris on Jan. 27, 1973. Congress opposed Nixon’s bombing operations, and the House passed a resolution to prohibit the use of any authorized funds to support, directly or indirectly, U.S. combat activities in Cambodia. This passed 224-172. The Senate passed an even more sweeping denial of funds, and it was the Senate version that was presented to the president. Not surprisingly, Nixon vetoed it, claiming that the restriction would destroy the chances for a negotiated settlement in Cambodia. He warned that nine agencies of the executive branch dependent on the appropriations bill for funding would soon be unable to pay salaries. It seemed, therefore, that the issue of whether Congress could use its appropriations power had been joined. Congress could argue that the restrictions in the bill were binding on the president’s ability to wage war if it overrode the veto. But Congress blinked. Instead of overriding the veto, Congress passed a revised bill that delayed the cutoff of funds from June 30 to Aug. 15, 1973 — effectively allowing Nixon to continue the bombing for his desired length of time. The result is that we have no definitive resolution of the scope of Congress’ power to cut off funding in a manner that is directly contrary to executive authority. But the lack of a definitive political or judicial resolution is not a lack of power. Congress should not expect a formal invitation from the executive or an affirmation by the Supreme Court justices for the legislative branch to claim its authority. As a former presidential lawyer, I am a strong defender of the power of the executive to wage war successfully. But the successful conduct of a war in a democracy necessarily includes the judgment of more than one person. Congress has the power, if it also has the political will, to deny new funding or even to prevent the president from spending unused fiscal balances and other appropriations for the continuation of an unsuccessful war. Of course, making this choice also makes Congress accountable — and up to now, that is something that only one person has been willing to be.
Douglas W. Kmiec is professor of constitutional law at Pepperdine University in Malibu, Calif. He ran the Justice Department’s Office of Legal Counsel under Presidents Reagan and George H.W. Bush.

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