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It may be the ultimate constitutional question — but perhaps the answer is ultimately unknowable: How much can Congress intrude on the war-making authority of the president of the United States? The issue rumbled through Capitol Hill last week, the subtext of competing congressional resolutions criticizing President George W. Bush’s war in Iraq and his plan to send an additional 21,500 more troops into the country. For two hours last week, however, the question was front and center, the explicit concern of the Senate Judiciary Committee, which held a hearing, complete with five witnesses, to try to reach an answer. The bottom line: Although Congress has the power to declare war, ending a conflict isn’t as simple. And in this case, where there was never a formal declaration of war to begin with, the conclusion is even muddier. Wisconsin Democrat Russell Feingold, who chaired the Jan. 30 hearing, introduced legislation the next day that would terminate the war. Feingold’s bill, the Iraq Redeployment Act of 2007, uses a well-worn congressional strategy: Prohibit the use of any funds to deploy troops in Iraq beginning six months after the legislation is enacted. Most legal scholars agree that Congress has the constitutional authority to force U.S. soldiers out of Iraq, at least if it’s done through the appropriations process, a view echoed by Feingold. Put simply, he told a hearing room crowded with anti-war protesters, “If Congress doesn’t stop this war, it’s not because it doesn’t have the power. It’s because it doesn’t have the will.” The most controversial point, however, is not whether Congress can simply de-fund a war and, by doing so, force an end to U.S. involvement. That power is clearly laid out in the Constitution, which gives Congress the power to “raise and support Armies” and “provide and maintain a Navy.” The issue, on the other side, is the extent of executive power defined by the constitutional dictate that “The President shall be Commander in Chief of the Army and Navy of the United States.” “These cryptic words,” wrote Justice Robert Jackson in 1952, in Youngstown Sheet & Tube Co. v. Sawyer, “have given rise to some of the most persistent controversies in our constitutional history.” In other words, in the context of the current debate, does executive power include the exclusive right to decide exactly how many troops the president needs and where they must serve? Or can Congress intercede, insisting that Bush not increase his troop numbers in Iraq or even telling Bush where the other 100,000 troops must be deployed? MIXED SIGNALS Many legal scholars say there’s ample evidence — from Vietnam-era statutes to Supreme Court cases stretching back to 1804 — that supports that view. Others, like Robert Turner, a witness at the Feingold hearing and associate director of the Center for National Security Law at the University of Virginia, strongly disagree. Turner, in his lengthy written testimony, admitted that although Congress can turn off the money spigot and forceably stop the Iraq War, it cannot intrude upon the proper authority of the president, which includes, he said, quoting Chief Justice Samuel Chase, “the conduct of campaigns.” Deciding how many troops must be used to fight a war — “or how those forces should be deployed — is at the heart of the president’s constitutional power,” wrote Turner. “This proposition, in my view, is not arguable.” But, this being the Constitution, it is all too arguable, a point Jackson also made in his Youngstown decision: “A century and a half of partisan debate and scholarly speculation yields no net result, but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.” Or, as one cynical Judiciary Committee staffer said after the Feingold hearing, “How strongly you support Bush colors your view with respect to the legality of what Congress can do, almost to a T.” Indeed, one of the few commentators besides Turner to argue that executive power includes carte blanche authority for determining the scope, size, and duration of a war is David Rivkind Jr., a former deputy director of the Reagan Justice Department’s Office of Legal Policy. Rivkind, now a partner at Baker Hostetler, bases much of his argument on the theory of the slippery slope. “If Congress can impose intermediate restrictions on a president’s exercise of his commander-in-chief-powers, what is it that Congress cannot do?” he wonders. “There’s no dividing line.” Adds Rivkind, who, along with colleague Lee Casey, last month wrote an op-ed on the subject in both The Washington Post and The Wall Street Journal: “We can zero out funds for the Air Force, but we can’t tell the president he’s using too much air power in Afghanistan and upsetting the Pushtans.” SURGE PROTECTOR But the slippery-slope argument simply doesn’t wash, at least not in the case of the 21,500 extra troops, argues Duke University law professor Christopher Schroeder, a former chief counsel for the Senate Judiciary Committee when it was chaired by Joseph Biden Jr. (D-Del.). “There may be some outer limit to what Congress can do, but we are so far from that with this proposal,” says Schroeder. “This is no more than what Congress has done with enacted statutes in the past.” According to a Congressional Research Service report released last week entitled “Congressional Authority to Limit U.S. Military Operations in Iraq,” Congress has frequently used its spending powers to restrict troop deployments in the past. Take, for example, the Second Supplemental Appropriations Act for Fiscal Year 1973, in which Congress said that no money appropriated under that supplemental “may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam, and after August 15, 1973, no other funds heretofore appropriated under any other act may be expended for such purpose.” A year later, an authorizing statute of the Foreign Assistance Act of 1974 set a total ceiling of U.S. civilian and military personnel in Vietnam at 4,000 six months after enactment and 3,000 six months after that. In the 1980s, different versions of the Boland Amendment, which outlawed support for the Contras in Nicaragua, prohibited using funds for certain military activities in that country. In the 1990s, a Department of Defense appropriations act cut off funding after March 31, 1994, for almost all U.S. troops in Somalia. “These statutes have not been challenged,” says University of Baltimore School of Law professor Charles Tiefer, who recently published an article on the subject in the Stanford Journal of International Law. “They show a sensible line of thinking by which not just a few people of our generation, but all people of the legislative and executive branches, have understood the distribution of authority.” The statutes, says Tiefer, “have created an historic road map for where the lines are between Congress and the president in this context.” There’s also a practical check on Congress running roughshod over presidential war-making prerogatives — the presidential veto, notes Harvard Law professor David Barron, who testified at the Feingold hearing. If a president thought legislation unconstitutionally intruded on his command authority, Barron says, he could veto the legislation, which in turn would take a two-thirds majority to override. That means, says Barron, “you would need a supermajority for everything. As a practical matter, this could never happen.” There are also a handful of court cases which congressional advocates cite to show that they do, in fact, have constitutional authority to direct certain commander-in-chief activities. Take the undeclared war against France in the late 18th century. Congress wanted to make sure that U.S.-owned ships were not secretly engaged in commerce with France, so it passed a law in February 1799 that gave the U.S. Navy the right to seize any suspicious U.S. ships sailing to any French port. Later that year, an American frigate, under orders from the Secretary of the Navy, seized a Danish ship that the frigate commander, George Little, thought was American-owned. But, as Chief Justice John Marshall wrote in Little v. Barreme, even if the ship had turned out to be an American vessel, it was sailing from a French port, not to a French port, and Congress had decreed that only U.S. ships sailing to French ports could be seized. “[H]ad she actually been an American, the seizure [still] would have been unlawful,” Marshall wrote, adding that Little “must be answerable in damages to the owner of this neutral vessel.” The case, says Barron, is a “foundation precedent” that clearly shows that Congress can restrict a president’s command authority in war. Those who want to limit Congress’ war powers to the broadest generalities, he says, must find a way to “distinguish Barreme. “If they can’t get rid of that case,” says Barron, “they’re dead.”
T.R. Goldman can be contacted at [email protected]

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