Bush has described himself as “the Decider” and now “the Decision Maker.” Kathleen folded that into “the Decisioner,” but Ariel then came up with one I like even better: The Decisionator.
But here’s my question: Is he really?
From my admittedly layman’s understanding of these things, the President serves as the instrument of Congress. Congress has the power to declare war (or, as was the case with Iraq, the power to abrogate that power, apparently) and the President, as the Commander-in-Chief or, if you will the Decisionator, then wages the war on Congress’s behalf.
What I’m a little unclear on is: Does Congress has the power to *un*declare war?
The Decisionator is determined to send in more troops, and Congress seems determined to voice its objections via a nonbinding resolution, which is kind of like parents setting a curfew and then enforcing it by announcing that they’re going to snore really loudly in protest when the kid breaks it. What I want to know is whether Congress has the power to say, “We’re done. We were told the United States was going to war for these reasons. These reasons no longer exist. The war is over. We’re pulling out,” and then inform the President that he no longer has Congressional authority to wage war, and that if he continues to do so, he will be impeached. In which case, does the Decisionator obey their will or does he tell them to go screw themselves, in which case we have a full blown constitutional crisis.
I’m no con law scholar. I honestly don’t have any idea. But it would be interesting in that it would be the second time in the last seven years that matters relating to George Bush suddenly send everyone scrambling to the constitution to see what should happen next.
PAD
• 
Well shuck my grits, first at bat! I don’t know about a constitutional crisis as such, however a credibility crisis already exists.
Since the Decider in Chief has become accustomed to a rubberstamp, boot lick legislative branch, there will probably be a period of adjustment. Meanwhile, look to presidential hopefuls from both parties to sniff the popular wind to see which direction has the best odds of getting him/her into the Oval Office.
None of the Republican hopefuls will back an impeachment since Dubya appeals to the religious right, and the Repubs are afraid of them. The Dems will only push for impeachment if they think they can take Cheney out with Bush.
As I understand the succession, that will put Nancy Pelosi in the big chair until the 08 elections, which is a thought that makes little chicken hawks wet their beds at night, and will not please Hillary to much, as she has designs on the title of “First Woman to be President.”
The only way there will be a crisis is if anyone really pushes hard. If Dubya pushes Congress to hard, they will push back. If congress pushes to hard, the GOP will try to use the Dems “lack of support for the troops” as a wedge issue in 08 to peel the Blue Dog Dems from the main party.
Or I could be way out in left field, and congress decides nuff zed, we’ll try to take out Bush, and hope President Cheney gets the message.
As I understand, Congress has the power to declare war and make peace (by ratifying a treaty). However, there’s no one really to make peace with over there. The Constitution gives the President the power to control the movement of the troops, and in recent history that power has been used in “police actions”, wars that weren’t ever declared wars. That issue has come under challenge several times, most prominently with the War Powers Act. It’s never really been settled conclusively (though obviously each branch has its own opinions on what the Founders intended) so ultimately it comes down to whoever is on the Supreme Court at the time the issue is raised. Given the makeup of the SC today, I kinda doubt they’ll side with Congress this time around.
Hmm… A little digging around just now brought me to the War Powers Act. Passed by Congress in 1973, it “places a 60-day limit on any presidential commitment of U.S. forces abroad without specific authorization by Congress” (Grolier Encyclopeia of Knowledge, vol. 19, page 256). Would that apply to an additional commitment of troops? Does it mean that Congress could recind its approval of the current commitment in Iraq, legally requiring the withdrawal of our forces within sixty days?
This is assuming that the War Powers Act hasn’t been overturned – my encyclopedia could be outdated – or that it isn’t superceeded by the Patriot Act. And then there’s the issue of additional presidential powers during times of war. The “war on terrror” is rather convenient in that regard, with the assertion that we’re in a perpetual state of war….
Is Bush capable of realizing that Congress is a counter-balance and equal partner in government, not just a body of flunkies meant to carry out his will? This could be the issue that really puts that question to the test.
“This is assuming that the War Powers Act hasn’t been overturned – my encyclopedia could be outdated – or that it isn’t superceeded by the Patriot Act.”
As I understand it, the Patriot Act supercedes anything that is inconvenient (Habeus corpus, detention without charge, freedom of speech, FISA) to national security.
PAD, yer freedom clock may have to run a bit longer than expected.
Just a note – as I wrote my post, no comments were showing yet, so I hadn’t read Matt Adler’s mention of the War Powers Act. Just in case that seemed repetative.
PAD, yer freedom clock may have to run a bit longer than expected.
UGH. Please don’t even joke about that.
The only power Congress has over Bush and the military is the power of the purse. They authorized Bush’s going into Iraq, and have continued to authorize the funding for it. They are continuing to give him the option of how to pursue this.
These non-binding resolutions are just that – non-binding, and non-effective. What Congress is really doing is giving Bush enough rope to hang himself with. They are on record being against the surge/escalation/expansion or whatever you want to call it. It puts Bush on notice that this is his last chance. They are giving it to him by making non-binding resolutions. I wish they would just come out and say it this way, though.
The next major set of votes (in 9-12 months I’m guessing) will be to cut funding except for what is necessary to withdraw. If that happens Bush will have no choice.
On a related note, and I haven’t seen it widely reported. al-Sadr has (once again) decided to play ball politically. Apparently, the increase in troops has made him nervous enough to come back to the table. It’s the first thing I’ve seen in months that seems positive.
Would that apply to an additional commitment of troops? Does it mean that Congress could recind its approval of the current commitment in Iraq, legally requiring the withdrawal of our forces within sixty days?
That’s where it gets into a grey area. The War Powers Act established that the president had to get permission for commitments beyond that 60 days… but it made no mention of what happens if Congress later changes its mind. Theoretically, Congress could pass a new law saying that the president has to get renewed permission or somesuch… but he would no doubt argue that they were intruding on his powers as commander-in-chief and that’s when it would come back to the Supreme Court.
Myself, I believe the Framers intended that no military action could be launched against another nation without an express declaration of war from Congress… but that premise was violated so many times in the 20th century (and now into the 21st) that it unfortunately has become virtually irrelevant. The way we operate now is that Congress has transferred its power to declare war to the President, without any Constitutional amendment. And unless the Supreme Court says otherwise, that’s how it’s going to stay.
Congress hasn’t declared a war since WWII, so it’s not just the recent congresses who have abrogated their responsibility.
Peter David: What I want to know is whether Congress has the power to say, “We’re done. We were told the United States was going to war for these reasons. These reasons no longer exist. The war is over. We’re pulling out,” and then inform the President that he no longer has Congressional authority to wage war, and that if he continues to do so, he will be impeached.
Luigi Novi: Well, if what Mark said about Congress having the power to cut off Bush’s purse strings is true, then that may be an avenue through which they can end the way without a direct confrontation with Bush. Otherwise, impeachment is pretty much what it comes down to. With Bush’s approval rating at 28%, perhaps they’re going to have to choose between a legal action that has only been taken twice (almost three times) in our history, one which will require a grave commitment, and possibly cross a line in the sand, or allow more of our kids to be killed overseas. Then again, perhaps the mere threat of impeachment will be enough to scare Bush into reversing his policies.
With Bush’s approval rating at 28%
Wow, is it that low now? I thought it’d stay somewhere between 30% and 40% for the remainder of his presidency if he kept doing what he was doing.
Then again, perhaps the mere threat of impeachment will be enough to scare Bush into reversing his policies.
Don’t bet on it.
It’s below 28%. Those polls are only for 1000 random people. I’m sure if there was a national vote about Iraqi pullout and getting a new President and VP next week, it would without a doubt happen. A good 3/4ths of America dont like him, and I’m sure if people were not scaredto death to have Ðìçk Cheney as President, Bush would be gone.
Congress never declared war; therefore, they don’t have the power to “undeclare” it. As several have pointed out, Congress principal check on the President’s actions here is through the budget.
The President, as an institution, is more than an instrument of Congress. It is a co-equal branch of the Republic. This is demonstrable by the fact that Congress doesn’t have the power to impeach a President it disagrees with. They don’t get to decide if the President is doing a good job. That’s not their role. Impeachment is an extreme act, reserved for an officer of the state, including the Presdient, who commits “treason, bribery, or other high crimes and misdemeanors.”
So, even though many might disagree with the President, he’s empowered to make these decisions. And the Constitution gives Congress the power to check that decision. In that case, through its power to control the treasury.
I think the purpose of the non-binding resolution is to hamstring Republican contenders for the 2008 presidential election. Several Democrats have said the purpose of the resolution is to get people on the record about the Iraq war. If Republicans refuse to support the resolution and Iraq hasn’t gotten any better by 2008 (considering there’s over 1,000 years of ethnic strife, I doubt the next year will see any significant progress), Democrats can say that those Republicans showed their support for a failed war. If Republicans support the resolution, Democrats can say they’re more in line with Democratic thinking than their party. And if any Republicans abstain, Democrats can say the Republicans lacked the conviction to take a stand. For Republicans, it’s a lose-lose situation.
Mr. David, it is my understanding that Congress actually has the power to do all of the things that you mentioned. The President’s role of Commander-in-Chief of the Armed Forces is simply that of the highest ranked General. He’s not supposed to be able to determine when we’re fighting a war. Alexander Hamilton made that clear while writing the Federalist Papers with James Madison trying to convince the various states to ratify the Constitution. Congress could un-enact the two Authorizations to Use Military Force that got us into Afganistan and Iraq (it they had enough votes to override the certain veto that would result), and the President would be legally obliagated to comply. I’m sure the Whitehouse wouldn’t agree with that, but they also think that the President doesn’t have to worry about petty little nuisances called “laws” (like FISA) even though the Constitution explicitly says “[The President] shall take care that the laws be faithfully executed.” I’m sure that there would be resistance from the Whitehouse. Congress could also de-fund the military operations in Iraq, and they could always impeach him if he defied those measures.
All of that is in theory, of course. Congress has those powers but I don’t think for a minute that any of those measures is going to actually come out of the Congress that we’ve got right now. President Bush is nowhere near as popular as he used to be. Right now I suspect he’d kill for Jimmy Carter’s approval ratings, but he’s still got an incredible amount of support from the Republicans in Congress. I’ve joked in other places that he could star in a snuff-pørņ movie filmed on the Whitehouse lawn in broad daylight and there still wouldn’t be enough Rebublicans in the Senate willing to actually impeach him out of office. In order for that to happen the snuff-pørņ would have to also be one of three things.
A) Satanic ritual snuff.
B) Infanticide snuff.
C) Gay pørņ.
If you want to get all constitutional about it, the power to end war rests with the Senate, which is the branch of Congress that ratifies treaties (including peace treaties). I don’t believe the Constitution makes any mention of who decides it’s time to negotiate a peace treaty or who gets to negotiate, however, though I’m not aware of any time that peace negotiators have been nominated by someone other than the President.
The real problem, of course, is that you can’t have a peace treaty without being at war, and as has been pointed out above, the United States hasn’t been at war since 1945, since neither has Congress issued a declaration of war nor has the United States had a war declared upon it since then.
If someone wants to no if Congress has a legal recourse to end the occupation of Iraq other than cutting off funding or the (likely unsuccessful) extreme of impeachment, they’d have to go back and reread the congressional authorisation of action in Iraq to see if it has any limits written in.
Though since we’re not “at war” with anyone at the moment, I’m not sure there’d be anything (constitutionally or legally speaking) to stop Congress just passing a law mandating the withdrawal of all US troops from Iraq.
Congress could revise the Authorization to Use Military Force (the AUMF) against Iraq. Unfortunately, I don’t believe that Bush would feel bound by it, let alone the War Powers Act.
See, the Bush Administration believed at the time (and, as best I know, still believes) that the Congressional resolution passed in the wake of 9-11 to eliminate al-Qaeda authorized the President to take any military action he deemed necessary. I’m going to have to find the citation on this, because it’s a very weird argument. It’s that the preamble of the resolution, which is an introductory passage intended to indicate what the purpose of the bill is, allows for the President to take unilateral military action. I was listening to a story about this on NPR about nine months ago, and a constitutional scholar was saying that bills were never meant to be interpreted this way, that the preamble doesn’t mention anything about military force, and yet Alberto Gonzales had made the argument that the preamble allowed for whatever the Administration wanted. (I recall that they’ve claimed the preamble authorized lots of other things too, like Jose Padilla’s incarceration and torture, but I’ll leave that for another time.)
Ultimately, yes, we will be heading for a Constitutional Crisis. I don’t think I’m batshit crazy, but I can certainly see that there may not be an orderly transition of power to the 44th President.
In all this discussion of Congress voting for ww deuce, it should be remembered there were even some dissenting votes against going to war with Japan. Germany, it should be remembered, declared war on the US.
Hitler also used manufactured incidents to get Germany into war. In 1939, a Polish raid on a German frontier radio outpost was used as the final “justification” for the invasion of Poland.
I am not saying that Bush and Co. staged 9/11, but that tragedy has been used to justify every excess of the current administration since.
Can anyone tell me how many reasons were given for the invasion (20 lashes for anyone calling it “liberation”) of Iraq? 9/11 link, then WMD, then democratization. Now “stay the course”. What’s next?
Alberto Gonzales also tried to invoke a concept from English common law whose Latin name I can’t recall, but which boils down to “Whatever the King does is by definition legal,” to justify certain actions of the Bush Misadministration. It wouldn’t surprise me if he tried to claim that the preamble to the AUMF was more important than the body, if it served the interest of His Imperial Maj- er, I mean the President.
Didn’t Ted Kennedy say this week Bush would have the 21k troops in Iraq by the time a cut in war-funding was enacted, and that they would be accused of cutting funding for all of them?
The whole purse-string issue doesn’t seem to be any more complicated than a hostage situation.
“The whole purse-string issue doesn’t seem to be any more complicated than a hostage situation.”
The problem there is that the Neo Cons have managed to get support of the mission to be directly equated with support for the troops.
Someone has to change the equation to support of the troops equals not wasting their lives on pìššìņg matches.
Truman not only got us involved in a full-blown war in Korea without declaring war (thus avoiding the step where Congress declares war), he’s the only president who did so WITHOUT EVEN ASKING Congress.
Vietnam, an even bigger war, was also undeclared, and Johnson’s massive escalation there basically cemented the trend where the president can apparently commit as many troops as he wants to a conflict, and leave them as long as he wants — providing Congress doesn’t cut off the money.
What I find ironic is that most of the people here who are upset that the president now apparently has more leeway than ever sending troops in harms way are Democrats.
The War Powers Act of 1973 was an attempt to rein in the president somewhat to prevent future extended conflicts like Korea or Vietnam, but I think it’s pretty obvious it has failed.
PAD’s question is a simple one. Congress can in fact declare an end to the war. The problem is that in order to pass such a resolution, they need to have enough vote to avoid a sentate fillibuster and override a presidential veto.
The non-binding resolutions is a part of a long-term political strategy by the democrats to slowly co-opt enough Republicans to do this.
“Truman not only got us involved in a full-blown war in Korea without declaring war (thus avoiding the step where Congress declares war), he’s the only president who did so WITHOUT EVEN ASKING Congress.”
The Korean War was actually a UN operation. It was undertaken in the post WWII panic about further communist expansion into Asia.
Ironically, Truman got the UN Dubya would have adored. Willing to be an extension of US policy.
PAD’s question is a simple one. Congress can in fact declare an end to the war.
I’m not sure it’s that simple. Under the War Powers Act the President has to consult with Congress prior to the start of any hostilities as well as regularly until U.S. armed forces are no longer engaged in hostilities (Sec. 3); and to remove U.S. armed forces from hostilities if Congress has not declared war or passed a resolution authorizing the use of force within 60 days (Sec. 5(b)). (from wiki)
Having complied with that by getting P.L. 107-243, I doubt that they can now do much about it other than cutting off funding. How likely is that? Well, congress actually had a chance to DO something this week–they could have voted down approving General David Petraeus for Chief of Staff of the United States Army. Unlike the nonbinding resolution, that might have actually affected whether or not the surge occurred. He was approved without a single nay vote, 81-0.
It would seem the only action anyone is willing to take is the kind that doesn’t do anything other than express feelings.
Ultimately, yes, we will be heading for a Constitutional Crisis. I don’t think I’m batshit crazy, but I can certainly see that there may not be an orderly transition of power to the 44th President.
You’re not batshit crazy but you are sounding an awful lot like those right wingers who swore that there was no way Bill Clinton was going to hand over power at the end of his term. I expect to hear a lot more about the upcoming Bush coup right up to the day he hands over power in about 723 days, by the old clock on the monitor. I’d put money on it but I can’t imagine anyone would take such a lose/lose bet.
Manny wrote “The Korean War was actually a UN operation. It was undertaken in the post WWII panic about further communist expansion into Asia.”
It doesn’t matter that the U.N. was involved. Truman wasn’t elected by the U.N., and Truman unilaterally decided to commit massive amounts of troops to the fight, without consulting Congress.
Even the hawkish Gen. MacArthur, who allegedly was prepared to use nukes during that confrontation, and who was later fired by Truman for not following Truman’s specific orders, later wrote in his memoirs that he was disturbed by the way Truman went about entering that war.
Truman’s approval rating during the Korean War, which we came to within a hairsbreadth of losing, was so low, it makes President Bush’s current rating look positively glowing.
One final point. Because of the stalemate that was the cease fire that ended the Korean War, we have spent an additional 54 years in South Korea, with tens of thousands of U.S. troops on a constant hair-trigger alert (spending trillions of dollars in the process). What have we to show for it all? Well, we’ve deterred North Korea from attacking South Korea (a country with far less strategic interest to the U.S. than, say, Iraq), but the regime shows no sign of going away, it has developed nukes, and, because it holds the millions of innocent people of Seoul hostage (because the city is so close to the DMZ), there hasn’t been a dámņ thing we could do about it.
Watch out for another attack on US soil….
I work late and on the way home I listen to those political talk shows like Michael Savage and such and THEY said that therell be another Sept 11 attack here which (of course) will unite us and then Bush will have the excuse he needs to go into Iran.
(although I don’t see how if we don’t have enough troops (or enough additional BILLION$ !!!)
for the FIRST darn area we’re in)
“It doesn’t matter that the U.N. was involved. Truman wasn’t elected by the U.N., and Truman unilaterally decided to commit massive amounts of troops to the fight, without consulting Congress.”
I’ll agree to this statement, however Truman had already decided not to run in 1952, so he made a lame duck decision, and, like Shrub, at the time, the move was met with general popular approval.
I will also agree that the UN did not elect Truman. Nor did the world elect Bush. Yet the Decider in Chief has had a Canadian citizen sent to Syria to be tortured. In the interests of full disclosure, the information that led to this çlûšŧërfûçk came from the RCMP.
Since that time, a Canadian investigation into the event has cleared Maher Arar, the Canadian government has paid him 10.5 Mill plus legal expenses. And still, the US will not take his name off their no fly list, for all practical intents and purposes making it impossible for the man to travel.
I’m Canadian. I don’t recall electing Bush.
You’re not batshit crazy and you don’t sound batshit crazy.
What’s batshit crazy is comparing Bill Clinton to the constitution-trampling George W Bush — whose attorney general refused on the senate floor to deny he had the authority to sweep citizens off of American streets and, at his own descretion, send them to be foreign countries to be tortured.
What’s batshit crazy is sheltering an obvious predatory agenda with transparent denial.
Hmmm. My gut feeling is that we are not headed for a Constitutional crisis. The Democrats in Congress are only going to press removing the troops so far. In a very public vote in the Senate, we will see one or two republicans stop the cutting of any funding for the surge et al.
Iraq is going to be the number one campaign issue for Democrats in 2008. Why would anyone think that they would want this issue gone?
Actually it would only hurt the poor troops over there if the funds got cut off NOW….
It will make us look really stupid(er) to the rest of the world but maybe in the long run its best we just leave and reboot and take a different tac
and ‘No’ I havent got a clue what KIND of tac or a solution…..
after all- thats what I pay those old farts in Washington for.
Bill~
Actually it is that simple. By approving a military action congress does not abrigate it’s ability to declare or undeclare a war/military action/etc.
One of the successes of the neo-con movement is that it has successfully conflated political problems with legal ones. IE they will argue to the public that congress doesn’t have the power to end the war and will use all te examples given of undeclared wars as proof.
However, the barriers to those examples were never legal. Rather they had to do with politics and process.
The problem currently is that congress passed a resolution that said, basically, “we approve of any action you take in Iraq and this resolution also counts as your regular consultation”
Having granted the president a free pass, they now have to vote to take it away. Once it’s gone, they can simply refuse to continue authorizing military action, effectively ending the war.
Politically this is vey difficult to do, because the democrats do not have enough votes fo cloture or to over-ride a veto.
So legally, yes they have the power. But they have hamstrung their ability to exercise that power by creating a process in this case were they have to pass legislation to exercise it.
Which, is precisely why the GOP worded the authorization the way they did.
In the other cases, keep in mind that a lot of congress people may have claimed to object to various operations, but did not necessarily want to go on record one way or the other. Also, there is a dynamic tension between the branches that allows the president to try loopholes knowing that the conservative nature of the senate will delay any action regardless of the objective legality.
As to claims that the Dems are being wussies for passing a non-binding resolution, I disagree. They need Republicans on board and party loyalty runs deep in the GOP. Various senators need to be walked up to a place were they are ready to hoist Bush over. Sending up a non-bindng resolution is a win-win. If Bush accepts it, Dems win. If he rejects it, the republican supporters can begin the psychological process of “breaking up” with Bush.
That’s why the neo-cons are pushing the funding meme. Which Democrats are actually pushing that as a solution? It’s a GOP talking point being pushed because it helps keep the base energized (look who hates the troops) and pressure on potential republican defectors in congress in line (if you vote with the dems our base will destroy you).
Actually it is that simple. By approving a military action congress does not abrigate it’s ability to declare or undeclare a war/military action/etc.
I just can’t come up with any examples of congress “undeclaring a war” in progress. At teh risk of sounding like a neocon conflating political problems with legal ones, I think Bush could argue to the Supremes that giving authorization and then taking it away amounts to congress taking over the constitutional right of the executive branch to serve as commander in chief. I’d feel the sme way if they had jerked the rug out from under Clinton’s feet once we went to the Balkans.
That’s why the neo-cons are pushing the funding meme. Which Democrats are actually pushing that as a solution?
Feingold and Kucinich come to mind…but I agree it’s a total non-starter. Now if they were smart they’d try to pass a law that would, say, limit how many tours soldiers and reservists could serve on foreign soil or some other indirect way of preventing the surge. That would be very popular and it would mess up any attempt to increase the number of troops in Iraq. But as I said above, since nobody–nobody!–voted against confirming General Petraeus it doesn’t seem likely that any active interference with the surge is forthcoming.
Bill~
Part if the problem is that, with a 4 mos old attached firmly to my chest, my ability to go do some real sourcing for you is limited.
I would suggest you consider this. How many declared wars have we actually been in? And of those, how many were politically unpopular enough for Congress to take the relatively extreme position of “undeclaring”. If I could remember the correct term that might help.
As unpopular as Vietnam was, Nixon was re-elected. And the Dems were in a tough spot because they started the whole dámņ thing.
I also (and I may be wrong) don’t remember congress ever passing a resolution allowing the pres. a pass on consultation. So the reason you don’t remember it is because they probably never had to pass a law to exercise it before. And that gives the President a lot of power whereas if he had to consent with them they have the leverage to pressure him in less extreme ways.
And this may sound like a minor quible, but the President *is not* the Commander in Chief. He is Commander in Chief of the Armed Forces. He is a public servant we elected and the executive branch is a peer of the Congress and the judicial, even if the responsibilities differ. I believe that the use of the term Commander in Chief is a calculated effort to project an image of authority outside his actual powers. Glenn Greenwald has written a good posting recently about this. I think it also blurs his relationship with congress.
Although I hate business as government metephors and analogies think of it this way.
Bush is the CEO and Congress is the Board of Directors. The CEO might handle day to day affairs and be the nominal “boss” of the employees (in this case the military) he is ultimately answerable to the board of directors. Again, it is an imperfect analogy but it’s the best I could do on short notice.
And contrary to a previous posting, the Congress could in fact impeach the President if they didn’t like his policies. They just have to get enough members of congress to agree that these policies consitute High Crimes and Misdemeeners to vote for impeachment. I think people underestimate how hard that actually is. First, the impeachment needs to be filibuster proof and then each one of these congressmen needs to explain to their consititients why they over-rode the results of the presidential election.
The system is rather ingenious actually.
As for Dem proponents, I don’t believe that’s what Fiengold was saying. I believe he was discussing options generically not “this is what we should do”. I could be wrong, and that would be significant since Fiengold is pretty influential. I give you Cranky K though. I had forgotten about him cause he has no real power.
Bill~
Again, I apologize for the lack of citations and sourcing tha would probably clarify your questions. If you can wait about 2 years once the baby has grown more I sould have some extra time 🙂
But I would recommend glenn greenwald. He may have posted something. And while he definitely haes Bush and is a liberal, he is a lawyer and takes great pains to be intellectually honest and analyze the law based on what it says, not what he wants.
Allyn,
Congress could revise the AUMF, but the Democrats don’t have the votes at this time.
I don’t really think this is much disputed in the legal world. The rulings related to Presidential Power have gone against Bush. If it got to the Supreme Court I highly doubt Bush would win.
The constitutional crisis that may occur is not in the courts. It is what the NeoCons would do if the court ruled against them. They are already ignoring certain court orders. I suspect the Administration believes it would lose because Gonzales is on record as saying that the courts do not have authority in matters of related to War.
Bill~
As you can see I have a few minutes open.
I did some quick research and discovered that a ruling in 1999 (Campbell v. Clinton) found that while Congress could pass an act “un-declaring” a war, that it had no legal power as long as congress continues to approve funding. The court found that by approving funding congress was defacto granting it’s consent for continued hostilities both declared and undeclared.
That’s what Cranky K was referring to when he was dicssing cutting off funding.
Part if the problem is that, with a 4 mos old attached firmly to my chest, my ability to go do some real sourcing for you is limited.
Congratulations! Don’t worry about me, it isn’t like I need an excuse to go happily hunting things down on the internet (seriously, how did we ever live without it?).
I also (and I may be wrong) don’t remember congress ever passing a resolution allowing the pres. a pass on consultation. So the reason you don’t remember it is because they probably never had to pass a law to exercise it before.
I’m not sure you can say that Bush hasn’t “consulted” with them. It may depend on the definition of consult. Certainly generals and politicians have gone before congress and testified. Views have been exchanged. Now if by consultation they meant that the president had to get approval for any major tactical decision, I guess they worded it wrong. Consultation does not equal agreement.
And this may sound like a minor quible, but the President *is not* the Commander in Chief. He is Commander in Chief of the Armed Forces.
I don’t think too many people don’t realize that by “commander in chief” we are referring to his position in the military. What else would it mean?
And contrary to a previous posting, the Congress could in fact impeach the President if they didn’t like his policies. They just have to get enough members of congress to agree that these policies consitute High Crimes and Misdemeeners to vote for impeachment.
Sure but by that standard they can remove him or her for ANY reason. It’s so unlikely that it falls out of the realm of possibility, in my opinion.
As for Dem proponents, I don’t believe that’s what Fiengold was saying. I believe he was discussing options generically not “this is what we should do”.
i was using an editorial Feingold wrote for the Milwaukee Journal Sentinel (http://www.jsonline.com/story/index.aspx?id=551680) where he said, among other things, “It’s time for Congress to use the power of the purse to end this devastating war and finally bring American troops out of Iraq.”
Personally, although I disagree, I have to respect him for backing up his opinion with a proposal for action. It takes more guts than confirming the general who is planning on implementing the surge (so that, in the event it works one can claim credit for sending the right man for the job) while publicly predicting failure (so, in the event it doesn’t work one can claim they KNEW this would happen).
Again, I apologize for the lack of citations and sourcing tha would probably clarify your questions. If you can wait about 2 years once the baby has grown more I sould have some extra time 🙂
Please! When I had a 4 month old I was in little condition for writing the kinds of well presented arguments you’ve done. I don’t think I could have found the computer “on” button, much less the keyboard.
PDog, thanks for the reference. Campbell v. Clinton seems to me to be an odd little case–the ruling I found (Which was not a supreme court decision so we can’t consider it as settled, I guess) said that the ended up stating that the plaintiffs did not have the authority to sue the president. The merits of the case weren’t the issue. I’m not sure it really settled the questions we’re looking at.
But reading court rulings makes my head hurt so if any of the several legal minds on the board are more familiar with the case I’d love to hear their take on it.
If by “well presented arguments” you mean he didn’t lie, libel anyone, propgate whisper campaigns, weigh democratic lapses the same as republican corruption, or rely on transparent denials — well, it isn’t like you ever really recovered.
A mild tangeant, I’ve been led to understand that Shrub’s presidential library will run to 500 Mil. Can anyone confirm that number?
The only reason I ask is, I’m wondering exactly how many Scooby Doo colouring books 1/2 bil will buy. He definitely never read the constitution.
Bill~
I had a longer response written but nuked it by accident. Since time is precious I’ll stick to the core of PAD’s question: Can Congress “Un-declare” War.
I interprit Campbell vs. Clinton differently than you did. I believe the ruling explicitlily acknowledged Congress’ right to declare/un-declare war under the consent/advice wording.
The specific lawsuit was accusing Clinton of not consulting Congress and the court found that the Congress had de facto been consulted when operational funds were requested. Further, the court found that if Congress approved funding for a military operation that was defacto approval.
The specific reason for the lawsuit (unauthorized military force) is not germane here. What is germane is that by ruling funding to be defacto authorization the courts have put a substantial political burden on congress.
So in short, as I read the law, yes they can. But, as I read Campbell v. Clinton, the political cost is very very high.
Ok, that sounds more definitive. What I had read seemed to be saying that they more or less just denied the case based on the idea that the plaintiffs did not have the right to bring the lawsuit anyway.
Anyway, get some sleep. You never know when someone will need reattachment to your chest 🙂
It’ll all be moot as Bush will find some excuse to attack Iran by summer. That’s his “exit strategy” for Iraq.
I don’t think the Senate can force Bush to negotiate a treaty. They can only ratify a treaty that has already been presented to him.
What’s truly frightening is that the Decidinator thinks that things like “the law” and the “will of the people” as quaint, pre-9/11 thinking.
Remember all those times your mother told you “I brought you into this world, I can take you out of it?” Ok, me, neither, but I imagine it’s been heard by some.
Anyway, that’s essentially congress. Not that they created the President, but they define and limit what he can do. Or that’s the way it’s supposed to work, anyway.
Congress hasn’t declared war in this case. What they have done is pass a law that grants the President whatever authority he needs to fight terror. And it’s pretty much stated in words to that effect, and that broadly. It doesn’t assign specific funds, so the president must continually go back to congress and ask for more money. Which puts congress in a bind, as they face the choice of funding a strategy they don’t agree with, or cutting funding and risking the president committing troops anyway, and risking the troops because they don’t have money for equipment. Like bullets, which I’m told you pretty much need to engage in modern combat.
So, unless congress repeals the law that gives the president this authority, there’s no real connsitutional challenge coming up. In my view, it’s essentially a shield for Bush against any claims that he’s violated the Constitution, even with his warrantless wiretaps of US citizens, and erasure of habeas corpus. All he has to do is claim that every action was to further tha fight against terrorism, and he’s insulated from any action against him.
The thing is, neither side really wants to take that power away from the president, because each wants to be able to use it. While preventing the other side from using it. So what’s probably going to happen is, as we get closer to the next presidential election, we’ll see whatever side feels it’s going to lose start to make a push to repeal the law. And the side that thinks it’s going to win will resist that. If it’s the Dems that seem ahead, that’s going to be very interesting, because I’d say there are more Dems willing to relenquish that power, in the face of gaining control of it, than there are Repubs that would do the same.
“I don’t think the Senate can force Bush to negotiate a treaty. They can only ratify a treaty that has already been presented to him.”
Treaty with who? There is no government to negotiate with in this case. To negotiate a treaty to end the war in Iraq, a treaty to end the “War on Terror” is needed, since the Decisionator (Devidinator? Polarizer?) called Iraq the central front in the war on terror, and there was no actual declaration of war with Iraq that I’m aware of.
This one is an unending war, since it’s a war with a method, not a country or government. The only out for Congress to take, IMHO, is probably impeachment.
Counts could include lying to Congress about the evidence justifying the invasion of Iraq. Or the awarding of no bid contracts to politically connected companies. That at least has the possibility of tainting Cheney in the process, and taking that nauseating slab of suet out of the picture.
Unfortunately, given the glacial pace that Congress works at, by the time things actually get going, it’ll be election time.
Unlike Nixon, and there are not enough Republicans on the hill willing to vote for impeachment to convince Bush to resign.
Hi all,
My two cents is this:
Cent Number One: Listening to the very well thought out analysis by others in this thread (thanks PDog, Bill Mulligan, and Den!) Congress has the right to shut off funding for the war, but I doubt has any political power to micromanage the war or directly stop the war short of impeachment.
Cent Number Two: Impeachment is not as unlikely or inappropriate response as one might think. Because the House draws up charges of “high crimes and misdemeanors” and the Senate tries an impeached President, the only court that needs to be respected are the hearts and minds of the members of the United States Senate.
They alone will determine what is truly a “High Crime”, whether we think it is or not. They do not necessarily have to be guided by legal precedent because their decision is not appealable.
Therefore if the President chose to ignore the orders of the Congress, impeachment proceedings could be drawn up on charges of simply ignoring the will of Congress. Period.
In most cases most presidents with these two options facing them would put in place changes and institutions that would avoid impeachment and satisfy Congress. For example Nixon’s resignation or when there was widespread corruption in government contracts during WWII, the Truman Committee was able to balance Congress’ war concerns without micromanaging the President. (Unlike what happened to Lincoln during the Civil War)
The issue however, is that any other President would have gotten the message by now. While impeachment would be unlikely in most cases we are dealing with a very stubborn President to whom threat of impeachment may not be enough and ACTUAL impeachment be regarded as the only way to make sure Congress’ (and the people’s wishes) are carried out.
–Captain Naraht
(An Official Cutsy Moniker)
P.S. As I was typing the words “Bill Mulligan and Den.” I suddenly had a flashback to the drive-thru scene in “Dude, Where’s my Car”:
DRIVE THRU MIC: “aaaaannn dennn…..”
ASHTON KUCHTER: “NO ‘AN DEN’!!!”
DRIVE THRU MIC: “aaaaannn dennn!! aaaaannn dennn!! aaaaannn dennn!!”
I wish I had saved the link, but somewhere in the Time Mag archives is an article that deals with this…
Basically, as I understand it, there are three main reasons why the Congress will have difficulty stopping the invasion/military action/war/civil war/clusterf**k (pick one)
1> The lack of a supermajority in the Senate. Find ing 10 people to cross the aisle to stop a fillibuster will be extremely difficult if not impossible. (That whole fearing to look like not supporting the troops.). Without that, a few senators not planning to run again or safe for a few years can hold the whole shebang up.
2> Even if the congress votes to cut funding, there is nothing stopping the Pentagon from reallocating money from other lines to keep things going for a while. The only way to stop this would be to write a bill that strips the pentagon of the ability to adjust spending to meet military conditions, and that will not (and honestly should not happen). Which means passing a politically risky bill would have 0 effect in the short term. If I recall the article correctly (it was written pre-‘surge’ they could theoretically sustain an addition 60K troops for up to one year without additional funds allocated. The side effect of that would be the army would be fundamentally incapable of ANY military action for 3-5 years due to the scavenging that would occur to keep the troops active.
3> By using troops already in theatre, they are using troops for which funding has been already approved. Any changes would affect future funds for troops already on station.
Bleak as it sounds, here is a realistic assessment of the situation, which most people are downplaying (I think) because it just is so horrible.
We are now in an official no-win scenario:
We cannot pull out, as that will leave a gaping hole that WILL provide a terrorist haven as well as affect oil prices. (The question of what would have been the case had we not gone in is a purely intellectual and political exercise).
We cannot put the boots on the ground to secure the country and keep it secure, because, well, we don’t have them. The number I have heard to do that that seems right to me is about 400,000.
We CAN try to ‘expand our influence’ in the area (any guesses what I mean here) but no one (well mebbe a few people) think thats a good idea, but even then, NO TROOPS.
The reason no one can come up with a ‘better solution’ is that there ISN’T one. The only question is as Americans do we prefer to hemorrage (sp?) money, blood or both.
That’s about the strangest play on my name I’ve heard in a long time.
Manny raises a good point: who would we negotiate a treaty with? I supose that we could draft a treaty recognizing Maliki’s government as the new legitimate authority in Iraq and turn over all internal matters to them. That would give everyone in Congress and the White House cover, though it wouldn’t end the current civil war.
The basic problem with impeachment is that its determination is entirely political. Like any other Senate vote, it’s too easy to do the political calculus beforehand and know that they’re aren’t enough votes that would remove a president if he did X, no matter how much of an egregious violation of the law/Constitution X was. That gives president the courage to push the envelope and convinces many in the House that even trying an impeachment vote is a waste of time.
Nixon resigned just as an impeachment resolution was being prepared and he realized that he had less than ten GOP Senators still on his side. I’m not sure what can happen to convince Bush that he’s going to get the boot anyway.
I do think, however, that while I believe the man is truly delusional in his way of thinking, he’d have to be beyond batshit crazy if he tried to stay in office at the end of his term. Remember the definition of a Senator? Someone who sees the next President of the United States of America when he shaves in the morning. If Bush tried some kind of coup and declare himself president for life, McCain and the other 48 GOP “next presidents” would never stand for it. After all, they can’t have a turn if he doesn’t step down when his time is up.
I remember all the talk from the far right that Clinton wasn’t going to step down at the end of his second term and it seemed nuts back then, too. They held up a statement by him to the effect that if the Constitution didn’t prevent it, he’d have considered running for a third term as proof.
Bush has lost a lot of his swagger over the past two years and I think he’s grown tired of the job, having realized that it actually involves hard work. I don’t think he wants a third term. I’m sure the PNAC can find another stooge fairly easily from among the presidential wannabes.