Posted by Ilya Somin:
Can Presidents Wage War Without Congressional Support?
http://volokh.com/archives/archive_2007_09_09-2007_09_15.shtml#1189716517
Yale Law Professor Jack Balkin makes an argument that is very commonly
heard these days: that the separation of powers has broken down and
presidents can engage in warfare with little or no congressional
support:
The sad lesson of the past year is that the modern Presidency--
armed with control over military intelligence and a large standing
army-- can have its way in matters of war even if the President's
policies are very unpopular, and there is very little Congress can
do to stop it.
This lesson should be abstracted from one's feelings about the
current occupant of the White House. George W. Bush is a failure--
I won't mince words-- but even a failed President can do pretty
much what he wants in war given the way our constitutional system
has developed following the Second World War and the rise of the
National Security State.
I disagree. In fact, it is very difficult for a president to either
initiate or continue a military conflict without fairly strong
congressional backing. And the evidence of the last 60 years proves
it.
Let's start with war initiation. Virtually every major military action
undertaken by the US since World War II has either been formally
authorized by strong congressional majorities in advance (Vietnam,
both Iraq Wars, Afghanistan), or enjoyed strong congressional support
without a prior formal vote, though often there was an authorizing
vote after the fact (Korea, both Lebanon interventions, Grenada,
Somalia, Haiti). There is only one noteworthy exception to this rule:
President Clinton's 1999 military action in Kosovo, which was opposed
by most congressional Republicans. Yet even this case partly validates
the rule. Knowing that congressional support was severely limited,
Clinton took account of this political reality and carefully limited
the scale of US involvement and especially US casualties (which didn't
include a single combat fatality).
Setting aside constitutional considerations, there are good political
reasons for presidential reluctance to initiate war without
congressional support. If the war goes badly, the president will be
hung out to dry politically and suffer a severe backlash. Moreover, as
discussed below, Congress can use the spending power to stop a war it
opposes dead in its tracks. With congressional support, by contrast,
the president can shift some of the blame to Congress and make it
difficult for the opposition party to blame him by pointing to the
fact that their congressional representatives supported the war as
well (a gambit President Bush used to great effect against John Kerry
in 2004).
Even if presidents can't get away with starting a war without strong
congressional support, perhaps they can get away with continuing it
long past the point that Congress would like to end it. This is what
many observers, including Balkin, believe Bush has done over the last
year. The problem with this theory is that Congress does in fact have
the power to stop a war it would like to end at any time: it can do so
simply by refusing to vote continued funding for it. This is true not
only under my fairly expansive view of Congressional power over
foreign policy, but [1]even under John Yoo's extremely restrictive
one. I would further argue that Congress also has broad authority to
regulate military action in other ways. But even if that's not true,
the uncontested spending power is itself sufficient to stop any war
that Congress truly wants to end. The War in Iraq could not continue
for long without constant infusions of money.
Jack Balkin notes that the president can veto congressional efforts to
stop a war. However, the power to deny funding is effectively veto
proof, since Congress can exercise simply by refusing to vote the
money in the first place.
Why, then, have congressional Democrats failed to stop the war in
Iraq? My guess is that, however much they dislike continuation of the
war, they fear a preciptious withdrawal even more. Such a step could
well cause a foreign policy disaster for the country and a political
disaster for the Democrats themselves (because they will get a large
share of the blame). On the other hand, the combination of
continuation of the War with continued harsh criticism of Bush avoids
this scenario, while enabling the Democrats to blame Bush (with
considerable justice) for any failures on the ground. If congressional
Democrats could agree on an alternative to Bush's strategy that they
believe would both avoid immediate disaster and end the war fairly
soon, they could very likely use the spending power to force Bush to
accept it. But they don't have such an alternative, or at least most
of them don't think they do. The war continues not because Bush - or
any president - "can do pretty much what he wants in war," but because
the congressional majority doesn't really want to use its power to
stop him from doing it.
References
1. http://www.realclearpolitics.com/articles/2006/05/war_powers.html
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