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.
I. Initiating War.
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).
II. Continuing War in the Face of Congressional Opposition.
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 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 war powers, but 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 Iraq War 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 it 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 precipitous 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.
UPDATE: Some scholars add the additional twist that Congress' power to stop a war is difficult to exercise because, once war is initiated, Congress might legitimately prefer to victory to defeat, even if it would ultimately have preferred never to have started the war in the first place. Perhaps the congressional majority has a rank order of preferences of 1) no war (perhaps because they consider the price of victory to be too high), 2) an overexpensive victory, 3) defeat. But once the president initiates hostilities, only options 2 and 3 are still on the table. This argument would have great force if presidents really were able to start wars without congressional support. In fact, however, they have been unable or at least unwilling to do so.
UPDATE #2: Several commenters argue that the Democrats couldn't really defund the Iraq War without defunding the entire Department of Defense (since the Bush Administration could otherwise try to use funds allocated for general DoD purposes to continue the war). This is an interesting point, but I don't think it withstands scrutiny. The Democrats have at least two other ways to defund the war. First, they could refuse to authorize DoD spending bills without attaching riders forbidding use of the funds in Iraq (or at least strictly limiting that use to funds needed to effectuate a withdrawal). That approach would court a confrontation with Bush (who would threaten to veto). But the Democrats would have a good shot at winning that confrontation, in light of Bush's low public standing and that of the war.
Moreover, as a practical matter, waging the Iraq war requires numerous appropriations for specific equipment, payments to contractors, spending on Iraqi support personnel etc. of a type needed in Iraq, but not needed in comparable quantities for other military activities to continue elsewhere. For example, the war requires a variety of specialized equipment needed to operate in Iraq's desert environment. Congress could push through a bill excluding these items or strictly limiting their quantity to something approaching the amount needed to implement a relatively fast withdrawal.
No doubt those more expert in the federal budget process than I am could think of other ways for Congress to use the spending power without having to defund the military completely.
You need to talk to some Democrats about why they can't stop the war. It's actually pretty simple (although you aren't wrong about internal Democratic disagreements about what to do next)-- people are afraid of being accused of not supporting the troops if they cut the funding. And indeed, if the Democrats made a serious push to cut the funding (full disclosure, I think they should), Republicans almost certainly plan to do just that, even though supporting the troops and supporting the war are two different (and sometimes even antithetical) things.
Congress would have to entirely defund the Department of Defense in order for this to work. If refused money for the war in Iraq, the President would simply move money out of the DoD budget to continue operations in Iraq, citing his authority as Commander in Chief.
But you just can't defund the entire military...not when we've got a standing army. Which makes the "just don't appropriate any money" option an unworkable one.
No, they could simply refuse to authorize defense spending without a rider forbidding the use of the funds in Iraq (a strategy the Democrats actually considered a few weeks ago, but decided against). Moreover, as a practical matter, waging the Iraq war requires numerous appropriations for specific equipment, salaries, etc. of a type needed in Iraq, but not needed in comparable quantities for other military activities to continue elsewhere. Congress could simply vote a defense spending bill that doesn't include these items, or includes only enough for a very limited time.
Yes, they could be so accused. But there are lots of political strategies for dealing with such accusations, especially if the war continues to be unpopular. The Democrats could even vote to increase spending on military activities outside Iraq, thereby broadcasting their support for the "troops" as distinguished from the War.
Funds for other DoD activities won't change this. The argument will be that the troops in Iraq are in harm's way and how could the Democrats possibly deny them funding for the materiel that they need to protect themselves?
In any event, the broader point is that this fear-- and not the Democrats' disagreements about the way forward in Iraq-- is the reason why no funding cut-off has been proposed.
But arguing that cutting off funding could make them vulnerable to political attacks just doesn't stand up as a serious argument for inaction. That is merely admitting that there isn't enough underlying voter support to end the war, which is actually the case. The best way to end the war and bring the troops home is to win it. That seems an unacceptable strategy to the Democratic Congress, because most of the credit will go to Bush.
But if the President vetoes the bill containing that rider, we're right back to a game of chicken. Both sides can point the finger of blame at one another, but either way, the DoD has no funding.
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"Scale" being measured by ... what?
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If legitimizing US action (how much war can a president conduct without Congressional approval) is measured by the extent of US casualty, what's to measure or stifle executive use of remote violence that has little risk of US casualty, but has big consequences for the target country?
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If the US can accomplish regime change without ground action, it's "legitimate"? (As a matter of Con-law, without getting into the morality of it all)
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My point is that the metric for "legitimacy" is more complex than an accounting of US casualties.
I hope nobody is advocating that Congress should somehow be insulated from suffering the political consequences of their policy choices.
I think it's a little more complicated and nuanced than your analysis allows.
Consider Iraq war I. First GB-I places several hundred thousand American troops, plus a smattering of other countries' troops, at the very Kuwaiti-Iraq border—no war, no need for a declaration, just helping out, just maintaining the peace—THEN he changes the mission and declares we must go in. The troops are in harm's way on the border. Is THIS the proper time to ask Congress for an up or down on the war vote?
It is very easy, with the current expansive understanding of the President's powers as Commander in chief, for him to put troops anywhere in the world, in harms' way, and then dare Congress, in effect, to not support the troops.
(See what happens when you have a standing army? Maybe the founders had it right...)
No maybe about it. That's why the Second Amendment is there, after all: not for duck hunting, not for personal protection, not for revolution, but to avoid a standing army by placing the military power into ordinary people's hands.
Pity that the lust for Indian land overrode otherwise good instincts.
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One practical problem as it relates to continued action in Iraq is that this sort of language is typically in the nature of amendment; and an amendment with less than 60% support in the Senate can be used to stall the entire DoD package.
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Another practical problem is the desire on the part of 100% of Congress to avoid accountability. Defunding results in accountability.
Bravo, nailed it in one.
I actually had some thoughts on this last week.
It is very easy, with the current expansive understanding of the President's powers as Commander in chief, for him to put troops anywhere in the world, in harms' way, and then dare Congress, in effect, to not support the troops.
Congress could easily have refused to vote for war, while simultaneously supporting the troops by funding their presence in Saudi Arabia (where, by January 1991, when the vote took place, they were in little danger of attack0. I don't see much political risk there.
Yes. But if the president and the war are unpopular, Congress stands a fare chance of winning the showdown. Moreover, in my second scenario (appropriations bills that simply exclude equipment needed for the specific needs of the Iraq War), it is the President who would be in the position of acting to deny funding to troops if he vetoes - perhaps including troops in harms way in Afghanistan.
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In your cited posting, I find this ...
So, while not committed to a definite branch, it is likewise not denied to either branch, acting without approval of the other. Congress has the power, on its own, to declare an end to war.
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The issue with Iraq is, I submit, past the "war" stage, and into the "we beat 'em" stage. As for the "war on terror," well, that one is never going to end, regardless of declarations.
Seriously, it is difficult to for a group to act courageously than for an individual. George Bush only has to rely on his own steadfastness. All the Congressmen have to trust each other not to cut and run when the fight with the White House gets difficult. Of course, the fact that they are endorsing cutting-and-running as a matter of policy makes that trust even more difficult.
My real disagreement with Ilya and with some others in this thread is that whatever I believe, CONGRESS doesn't believe that. Rather, they believe that its too easy to make not funding the war sound like not supporting the troops when they are being shot at and bombed by the enemy. And that places a huge practical constraint on Congress' trying to end even the most unpopular of wars.
I agree the the commenters who imply that the President would make the "you can't support the troops without supporting the mission" argument. Congress has no good answer for that. It does seem that it would easier to impeach a president for waging an unpopular war than to de-fund it.
That is possible. I think they fear the same thing that happened to Newt when he "shut down" the government. Congress doesn't make friends by withholding money.
you are conflating support for the troops with support for the war. the war is very unpopular, the troops are not.
Many people (especially conservative hacks who are incapable of understanding any nuanced argument) will confuse the two. I don't share Ilya's optimism that the general public can be persuaded to see the difference either. The nature of our political arguments and the media is why it is very difficult, practically speaking, for anyone to end a war once started even thought it is technically possible.
Exactly. Prof. Somin's argument depends on (1) reliance on formal power rather than real world power; and (2) reaching a different conclusion about the extent of the real world power than those who actually have to face the consequences.
Now, I'm not in the least sympathetic to Congress here. I think a good many of them are just plain gutless and that they should do exactly as has been proposed in this thread. But even with Vietnam, Congress didn't even reduce a funding bill, much less take any more drastic action, until December 1974 (off memory). And few presidents could be weaker than Nixon and Ford. Apparently the practical political consequences are viewed differently by those in Congress than by those of us on the outside.
What I actually said is: That is merely admitting that there isn't enough underlying voter support to end the war, which is actually the case. Thorley incorrectly copied it, which made my spelling look worse than it already is.
But as to your argument that conservative hacks are unable to grasp the Congressional Democrats position I plead guilty. As far as I can make it out it can be boiled down to this:
I too demand an end to the war. I want Victory. That is the only solution my simple mind can accept.
We have a pretty strong norm of deference to the Executive here. For reasons such as the above.
I know. i had you and thorley (and a few others, but they have yet to make a post on this specific board) in mind when i wrote that sentence.
Individual congressmen are indeed ignorant and incompetent on many of htese matters, as are some individual presidents. But collectively Congress can call on extensive resources (e.g. - staff experts on intelligence and military logistics). As for adjustments, Congress can vote additional supplemental funds (or cut them) if it wants to and often does.
That's a meaningless statement where the objectives keep on being redefined and the enemy is so amorphous.
It does, however, make for great spin, because one can accuse war opponents of wanting defeat.
The Constitution provides for the separation of powers, for the Congress to control the military and for the President to be the Commander-in-Chief. The only way for these three things to be true at once is for the job of CinC to be a separate job from the Presidency, but one filled by the person who is President.
Thus, while the President has executive autonomy, the CinC is subject to Congress's control. If the Congress tells the CinC to quit, he has to quit; the President and his desires are simply irrelevant.
I would argue that this war was not authorized by a strong congressional majority in advance. At the time the AUMF was passed, the explicit narrative was that war with Iraq was possible but not inevitable -- Congress was turning over the power to go to war to the President as a bargaining tool, in the explicit hope that Iraq would disarm and the war would be averted. (You would have had to be naive to have believed that that was a likely outcome, but that was the publicly stated condition of affairs at the time.)
I'm not meaning here to argue that the Bush Administration is perfidious, and this war is illegal (I mean, generally I'm the sort of person that would like to make those arguments, I'm just not doing it now). But I think there's a fair chance that if the AUMF had been presented as a vote literally declaring war to begin without any possible intervening stage at which the war could be avoided, it would have failed. I'm not saying that it's certain, but the vote was so structured to procedurally pressure members of Congress who wouldn't have voted for a declaration of war into supporting the AUMF.
Strong opposition in Congress could have blocked the AUMF, but it's worth noting that it really wasn't a formal authorization of the war; rather it was a formal abdication of the decision to go to war to the President.
Those who contend that Congress can't stop our war effort in Iraq carefully ignore past precedent in Vietnam. You should ask them why they are so carefully averting their eyes from Vietnam.
The issue is political will, not constitutional means. Congress had the will to terminate funding of military aid for the Republic of Vietnam in 1975 and exercised its constitutional power to do so.
Congress here could pass legislation forbidding the President from spending already appropriated funds on military operations in specified geographic locations, i.e., in Iraq. But Congress lacks the will to do so.
Couldn't the people also infer that the President recklessly continued to order troops INTO harm's way without the proper materiel? Obviously, it could be construed as reckless to order troops to stay in a hostile area unable to properly defend themelves. The sensible move would be to withdraw them.
The only way the first argument works is if people are not willing to withdraw the troops -- if they are still invested in the war, so that failing to fund their efforts undercut a war plan that would otherwise have resulted in victory of some kind. So the PR showdown over which argument would fly in November 2008 depends on the substantive question of whether a majority of Americans have had enough and believe the war to be unwinnable, or at least unwinnable at a cost that they will pay.
I can't help the conclusion that Congressional Democrats have no spine whatsoever. If they truly believe the right course is to withdraw, then defund and see what happens in November 2008. The people may well decide that they were right and by defunding, they demonstrated leadership lacking from the GOP.
No matter what experts they can draw on, any action by Congress that involves tactics will violate one of the U.S. principles of war, namely: unity of command.
It's difficult enough to get a workable plan when you have one guy in charge of it, much less 535.
Exactly. I don't mind feeding that need, I have the advantage of having a very close brother that is on the radical side of liberal so I have a good insight into the liberal mind set. The bedrock principal of the progressive left is that the vast majority of people are too stupid to fend for themselves, they are too stupid to realize that they should vote for progressives, they are so stupid that a lot of them vote for conservatives. Only the intellectual elite are smart enough to understand the sophisticated arguments of the progressive left.
It even carries over to this thread, with the recurring arguement being that people are too stupid to realize that cutting off funding for the war doesn't mean leaving the troops defenseless. People are just too stupid to understand that so that policy won't work.
I'm a simple man, I can't get the concept that people can't take care of themselves without big government programs. I'm too simple to understand that I just think I'm better off with lower taxes so I can make my own decisions. I became a conservative when I fell for Reagan's simplistic formulation that Communism was evil so we should oppose it. I'll never be able to comprehend the reverse Occam's Razor of the progressive left: the more complex the policy the more likely it is to be right. That losing the war is a superior outcome to winning it.
The problem with accusing liberals of this is that it is conservatives who induce this alleged stupidity. So this argument is like the guy who started the fire complaining about other people being afraid to enter the burning building.
Since lots of people here on the right know that pulling the funding does not equal refusing to support the troops, can we count on you to write letters and make phone calls, en masse, to the white house and conservative media outlets who repeat those arguments?
But it seems rather easy to inoculate yourself against such an accusation by Republican kooks by simply allocating plenty of money to being them home and for veterans benefits.
No one in their right mind is suggesting cutting off funds and leaving the troops to fly home at their own expense. Maybe Rush moans to such a thought. But I think right-wing accusations of not supporting our troops is easily thwarted.
The broader accusation that Democrats are soft on terrorism will of course also be made. The response is inspired by Reagan. Do you feel safer now? Or when Democrats were in the White House?
you keep proving my point by relying on simple caricatures that lack any nuance.
it's not that people are too stupid to separate the two...it's that separate the two requires actual thought, attention, concentration and a rational analysis of complex ideas. you are even attacking a caricature of my argument. i never said that people are too stupid to see the difference. i said "...can be persuaded to see the difference either". in order to be persuaded by something someone must weigh the pros and cons of an argument and make a decision. most people don't do this. as ilya has shown voters are rationally ignorant...they don't take the time to make the decision because they don't need to. but that is not the same thing as being too stupid. the former implies they don't want to, the latter implies the can't.
who has made the argument that the people are just too stupid to understand? (besides you of course as a strawman)
(i apologize ilya if i've confused you for another VC commenter)
Who knew Kazinski's brother was representative of all liberals?
The bedrock principal of the progressive left is that the vast majority of people are too stupid
As opposed to conservatives, who think the vast majority of people are too evil. See how easy that is? What is to be gained by saying such a meaningless "principal [sic]"?
I'll never be able to comprehend... That losing the war is a superior outcome to winning it.
We already won the war--don't you remember "Mission Accomplished"? Now, what the hell have we been doing in Iraq since?
One other thing. Withdrawal might be best accomplished in tandem with negotiations and diplomatic efforts. This could involve deals with Iraqi groups, Iran or other entities. The State Department can arrange that, but Congress can't.
Actually I grew up in the Bay Area in the 60's and 70's, I live in Seattle now, my wife is very liberal, believe me I've had a lot more exposure to progressive viewpoints in my life than conservative ones. That is probably why I am a conservative.
But I do stand corrected, we did win the war in 2003. But as bloody and decisive as the Civil War was in the 1860's, Reconstruction was longer, maybe even more painful and its aftermath still looms as an issue in both politics and the American social fabric. Winning the peace in Iraq will be a cakewalk compared to that. We walked away from reconstruction in the American South in the 1870's and didn't resume the process until the 1950's. Lets not walk away from this reconstruction effort too soon.
PersonFromPorlock, you're forgetting that Congress must deal with the President's veto; Congress cannot tell him to quit without his agreement.
The best they can do is sit on their hands, and that most certainly will not bring about an official and legal end to the war so long as the president says that it continues.
Legally (but not practically), war will continue even if the Army runs out of bullets.
Then there's the matter of the individuals who caused this mess, who cited so many slippery reasons for it and made predictions that have all turned out wrong. Do you honestly want them to lead the way? Someone important said on the 2000 campaign trail that the U.S. military shouldn't be a nation-builder, I forget who.