Taylor: The President's War Powers

President Bush did not mince words May 1, in announcing his decision to veto the Iraq supplemental appropriations bill. “This legislation is unconstitutional because it purports to direct the conduct of the operations of the war in a way that infringes upon the powers vested in the presidency by the Constitution, including as commander in chief of the armed forces,” Bush said. His pronouncement did more than blunt a Democratic-led congressional effort to start winding down the war. He also planted the seeds for an extraordinarily sweeping assertion of presidential power—one which, if carried to its logical conclusion, could allow him to defy any and all congressional restrictions on the conduct of war in the future.

The bill that Bush denounced as unconstitutional would in fact have placed only minor restrictions on his conduct of the Iraq War. Yes, it would have required that Bush begin withdrawing troops by July 1 under certain circumstances, and by October 1 at the latest. But Bush could have complied by pulling out only, say, a single platoon of soldiers. He could also have refused to withdraw any more troops thereafter—by dismissing as unfeasible the vetoed bill’s nonbinding “goal” of completing the withdrawal within 180 days.

If Bush saw this bill as an infringement on his powers as commander in chief, what would happen if Congress got more confrontational—and presented him a binding, specific timetable for bringing the troops home?

There are, of course, political obstacles in Congress’ path. The Democrats in control on Capitol Hill seem unable to muster the two-thirds majority necessary to override Bush’s veto and legislate a specific timetable for withdrawal. The same is true of Sen. Hillary Clinton’s proposal to repeal the 2002 vote that gave Bush authority to invade Iraq in the first place. While such a vote could further undercut Bush politically, his veto would prevent it from having any legal impact.

But it is not so hard to imagine a simple majority in each House attaching a firm timetable for withdrawal to a veto-proof appropriations bill down the road. Would the president acquiesce? Or would he sign the funding bill—and simultaneously declare his intent to defy the timetable as an unconstitutional affront to his war powers?

If he took the latter course, he would be going well beyond the practice of past administrations—and exceeding his limits, in the view of many experts on the president’s war powers. “Presidential administrations have generally acknowledged that Congress may, by legislation, determine the objective for which military force may be used, define the geographic scope of the military conflict and determine whether to end the authorization to use military force,” said Walter Dellinger, who advised President Clinton on such issues, as head of the Justice Department’s Office of Legal Counsel (OLC).

Dellinger cites as an example the assertion by the late William Rehnquist in 1970, when he was head of OLC, that it was “both utterly illogical and unsupported by precedent” to say that Congress was limited to open-ended declarations of war and ''may not delegate a lesser amount of authority to conduct military operations.'' Rehnquist, who later became chief justice of the Supreme Court, noted that President Nixon had accepted a congressional ban on sending U.S. forces to Laos or Thailand in connection with the Vietnam War.

Another example of the limits on the president’s powers: the Reagan administration’s tacit concession in the mid-1980’s that the Boland Amendment—the vehicle by which Congress cut off funding for Reagan’s support of the contra rebels in Nicaragua—was constitutionally binding.

There is very little judicial precedent in this area. But the case against presidential supremacy was reinforced by an 1804 Supreme Court decision accepting Congress’ power to authorize the Navy to seize ships going to—but not coming from—French ports.

On the other hand, most experts agree that Congress cannot micromanage the president’s conduct of tactical operations in war. Congress could not, for example, leave the troops in Iraq while limiting their ability to counterattack indigenous Iraqi insurgents. At least one prominent conservative expert on war powers—Washington lawyer David Rivkin, who has advised this and previous Republican administrations—argues that Bush might be justified in disregarding any and all congressional restrictions of troop levels in Iraq, whether couched as funding conditions or otherwise, as “micromanagement” writ large.

“Congress cannot micromanage such key questions as determining troop ceilings in particular theaters of operations and troop redeployment and disengagement schedules,” says Rivkin. He has also revised his previous view—shared by almost all war powers experts—that Congress does have power to cut off all funding for American troop deployments in Iraq. Rivkin now reasons from the premise that Iraq is but one theater in the global war against Al Qaeda to the conclusion that Congress cannot prevent the president “from engaging the declared and active enemies of the United States wherever he can find them”—unless Congress cuts off all funding for the fight against Al Qaeda worldwide.

“I believe Congress can terminate a given war with a funding cutoff in most circumstances,” he explains, “but this is not the case here because our operations in Iraq have evolved into a major fight against Al Qaeda. Congress probably could have constitutionally cut off funding for the Iraq War in 2003 and 2004 and even 2005, but it cannot do so any longer, without tackling the broader war with Al Qaeda.” Rivkin argues that his position—an extraordinarily robust view of the power of the commander in chief—is consistent with language in some early Supreme Court precedents.

The Bush administration itself has not yet explicitly made quite that bold a claim of power in its drive to fend off congressional incursions into the management of the Iraq War.

If Congress does at some point condition future funds for the Iraq War on a firm withdrawal timetable, and if Bush does refuse to comply with the conditions while signing the bill, it would set the stage for a momentous constitutional confrontation. The courts would likely refuse to referee. That would leave Congress with two options: surrendering to presidential defiance or resorting to impeachment.

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