Author & Speaker

The Constitution v. The Iraq War

In the high-stakes face-off between Congress and the President over Iraq policy, Sen. Hillary Clinton (D-NY) has brandished a new weapon, joining a proposal for Congress to rescind its 2002 resolution approving “military force against Iraq.”
Because it puts into play the Constitution’s limits on presidential power, the “deauthorization” move can change the current stalemate.
The president cannot veto a concurrent resolution of Congress deauthorizing military action in Iraq, which allows Congress to make a definitive and compelling statement in favor of ending that action.
As important, a debate on deauthorization necessarily highlights the dramatic differences between current reality and the stated goals of the Iraq War Resolution of October 2002: to defend our national security “against the continuing threat posed by Iraq,” and to enforce UN resolutions regarding Iraq. Today’s mission of policing Sunni/Shiite violence in Iraq can hardly be shoehorned into that statement of purpose.
But what, really, would deauthorization achieve? Historical precedent is cautionary. After Congress rescinded its Tonkin Gulf Resolution in 1971, American troops fought in Vietnam for three more years. In 1974, Congress finally cut off war funding, which new president Gerald Ford accepted as he sifted through the dismal legacy of Richard Nixon.
Nevertheless, deauthorization could help redress the balance of warmaking powers between Congress and the executive by cancelling any claim that the current Iraq policy is a legitimate exercise of constitutional power.
For warmaking, as on many issues, the Framers of the Constitution aimed to build a governmental structure that would be clumsy and slow. At the Philadelphia Convention – which first met on May 25, 1787, more than two hundred twenty years ago – George Mason of Virginia told his colleagues that their goal should be “clogging rather than facilitating war.”
The showdown over warmaking came in mid-August of that hot summer, when the Convention delegates considered granting Congress the power to “make” war. What if, the question came, the nation were attacked while Congress was not in session? Mustn’t the President be able to make war in those circumstances?
Prodded by James Madison of Virginia and Elbridge Gerry of Massachusetts, the Convention revised Congress’ power to that of “declaring” war, not “making” it. Yet Roger Sherman of Connecticut reminded the delegates that they were giving the president the power only “to repel and not to commence war.”
The issue continued to trouble the delegates. Gerry, in particular, worried over the risks of presidential autonomy over warmaking. In a memorably risqué metaphor, he warned that a standing army – like a “standing member” – could assure domestic tranquility but posed “a dangerous temptation to foreign adventure.”
To limit the president, the Convention gave Congress the power to cut off war funding by specifying that military appropriations may not extend for more than two years. That would force the president to persuade Congress that any continuing military effort merited continued support.
In the recent confrontation over Iraq war funding, both Congress and President Bush have acted as the Framers provided. Congress approved an appropriations bill that set a date for funding to end. The president vetoed the bill, confident that Congress will back down to avoid the charge that it is failing to “support the troops” in Iraq.
Even if the president secures the funding he wants, deauthorization can help shift the debate against his policy.
Repealing the 2002 resolution will deny the constitutional legitimacy of the president’s Iraq policy. Without congressional authorization, the president can “make” war only when the nation is under attack, in order to repel a hostile force. Our troops in Iraq are no more “repelling” a hostile force than they are protecting this country from Iraq, or enforcing the UN’s Iraq resolutions.
Rather, having won the war it was sent to fight, America’s military now stands unhappily between Iraqi religious factions that assault each other with homicidal rage. This is exactly the sort of foreign adventure that the president cannot conduct on his own. This Congress, chosen last fall with a mandate to change Iraq policy, must bend every effort to stop that adventure.
Though not a final solution, deauthorization is an important tool for enforcing the constitutional limits on the presidency on this, the most important issue of the day. Congress should use it.