Congress clearly has the power of the purse and accordingly can defund the war effort. But beyond that, can Congress simply pass a law discontinuing this war?
I believe that the constitution implicitly gives Congress the power to discontinue this war, or any military effort for that matter.
Article I, section 8 of the US constitution proscribes the powers of congress. Here are some excerpts to back up my claim:
The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
…To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…
…To raise and support Armies…
…To make Rules for the Government and Regulation of the land and naval Forces…
…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In order for the President to engage the military in war, he needs approval from Congress. In the case of the Iraq war, the president derives his authority from Authorization for Use of Military Force Against Iraq Resolution passed by Congress in October, 2002. What if Congress repealed this law? Wouldn’t the president then lose the authority to continue the war?
The President’s job is the execute the law passed by Congress; his is job is not to make his own laws. Similarly, the President is the commander-in-chief of the armed forces. In this capacity, his job is to execute wars and military endeavors drawn up by Congress, (and to take emergency military action when circumstances don’t allow time for congressional approval). His job is not to engage in wars or endeavors that go beyond what is mandated by Congress.
Indeed, the constitution grants Congress more authority then it has been utilizing. In my view, not only does the constitution grant the Congress the power to terminate a war, but also to dictate how a war is carried out. However, in most cases, it is wise for Congress to allow the president much leeway in how he conducts a war and how he decides to end a war (partially in the hopes that he will act on the advice given to him by the military leadership). But in this case, considering the dismal job Bush has been doing, Congress might want to consider taking a more active role.
2 comments:
The power of the executive branch has been increasing steadily for decades, especially in this capacity. The last American conflict that took place after a formal, congressional declaration of war was WWII.
The President does not, of course, need a formal declaration of war from Congress for a military action to be legitimate. But this is another instance of congress' role in foreign affairs becoming more and more marginal.
There are other examples. The Constitution delegates the responsibility of establishing courts to Congress. Yet the armed forces set up military tribunals in Guantanamo for fighters captured in Afghanistan. This is supposed to only happen when civil courts are unavailable in a "theater of war" setting. Leave the establishment of courts to congress.
Keep up the good work.
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