By Neil Kinkopf
Reports indicate that President Bush plans to respond to the deteriorating situation in
The President’s plan to escalate the war in
Congress Can Forbid the President from Escalating the
Even if the President does not submit his plan for congressional approval, Congress is constitutionally empowered to require him to do so.
The Constitution grants Congress extensive war powers – so extensive, in fact, that Chief Justice John Marshall once wrote that “The whole powers of war being, by the Constitution of the
This structure is an intentional departure from the British approach. The King was set up, in Blackstone’s phrase, as the “generalissimo”; he was authorized to initiate and to prosecute war of any scope on his own authority. Under the U.S. Constitution, by contrast, it is Congress that has the power to initiate and regulate war, while the President is authorized to command the resulting war effort.
As Commander in Chief, the President’s role is to prosecute the war that Congress has authorized. The President may not go beyond this authorization.
This understanding of the President’s power as Commander in Chief is plain enough from the text of the Constitution itself. It has also been the consistent interpretation of the Courts. Chief Justice John Marshall set forth this interpretation in a series of cases arising from the naval war with
In the naval war with
The Supreme Court has continued to adhere to this view of the war power. In
Most recently, the Supreme Court has applied Justice Jackson’s framework to resolve challenges to President Bush’s assertions of commander-in-chief power. In both Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006), the Supreme Court rejected the President’s assertion of unilateral authority to conduct military operations (in those cases dealing specifically with the detention and treatment of enemy combatants), holding instead that the President must comply with applicable statutory limits as well as applicable international law.
The Supreme Court has been clear and unambiguous. When Congress, acting in the vast areas of overlapping power, tells the President “no,” the President must comply. Thus, Congress may limit the scope of the present Iraq War by either of two mechanisms. First, it may directly define limits on the scope of that war—and forbid the President from exceeding these limits—such as by imposing a ceiling on the number of troops assigned to that conflict. Second, it may achieve the same objective by enacting appropriations riders that limit the use of appropriated funds. Indeed, the reason that the Constitution limits military appropriations to two years is to prevent Congress from abdicating its responsibility to oversee ongoing military engagements.
The President Should Seek Congressional Assent for His New
The Constitution’s drafters understood the immense national sacrifice that war entails. Moreover, they understood the advantages that would accrue to the President during times of war. For these reasons, the Constitution assigns Congress the power to initiate war and to define the parameters of military operations. The Constitution’s structure, then, clearly contemplates that important decisions regarding the scale of war are to be made not by the President alone, but through the democratic process. This is why the Constitution mandates Congress’s assent not only to the initiation of a war but to its size and scope.
To be sure, Congress has authorized the war in
- On behalf of the Bush Administration, Secretary Rumsfeld testified, against the advice of General Eric Shinseki, that the Iraq War could be successfully waged with troop levels at or below present number.
- Secretary Rumsfeld also said that the war would take “six days, six weeks. I doubt six months,” and that, quite the opposite of an insurrection, American and coalition forces would be greeted as liberators.
- Former Deputy Defense Secretary Paul Wolfowitz testified that the war would cost the nation very little, and that Iraq’s oil revenues would allow it to “finance its own reconstruction.”
The authorization for war in
Before embarking on any escalation, the President should seek the assent of Congress and the American people. If he will not, the American people should understand that Congress has the power to stop him.
Neil Kinkopf is an Associate Professor of Law at