Congress has the power to stop Bush's troop escalation

By Nancy Jane Moore

New Kansas Rep. Nancy Boyda and a number of other members of Congress are mistaken: The Constitution does give Congress the power to stop Bush from increasing the number of troops in Iraq.

Constitutional law scholar Marty Lederman points out on Balkinization that Congress can pass a law prohibiting the surge in troops and requiring a phased pullout. They can also refuse to pay for more than a certain number of troops. He says:

If Congress does nothing to instantiate its strongly stated views about this most important matter of public policy, but resorts to mere pleading to the President to do the right thing, I fear that the Democratic Leadership letter will be viewed as implying that this is a decision for the President alone to make, and that Congress has no legal say in the matter. Nothing could be further from the truth.

In a second post on this subject, Lederman adds:

Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not -- this [a law limiting the number of troops] wouldn't be that. There would be no congressional officials here overseeing the President's discretionary responsibilities; no requirement that the President get approval of one or both Houses before taking certain actions. There would, instead, simply be limitations on a war imposed by statutes passed with the President's signature or by supermajorities of both Houses of Congress over the President's veto.

Another law professor, Neil Kinkopf of Georgia State University, makes similar arguments on the American Constitution Society blog. Kinkopf says the Constitution gives Congress the right to make Bush submit his troop plan to them for approval. He writes:

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 United States, vested in Congress, the Acts of that body can alone be resorted to as our guides ….” (Talbot v. Seeman (1801).

Like Lederman, Kinkopf says Congress can either limit the scope of the war or limit the use of money:

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.

Kinkopf also brings up an interesting argument in relation to Congress's original actions approving the Iraq War: Bush got that vote by doing what is called in consumer law a "bait and switch." In other words, he deceived Congress and kept them from having all the information they should have had when they voted. He considers that grounds for them to revisit the authorization.

Congress has apparently grown so accustomed to acting as Bush's lapdog that even those who oppose him have forgotten what kind of power they're supposed to have. I suggest we all forward the information on Balkinization and the American Constitution Society blog to Rep. Boyda and other Congress members who are making this mistake. Perhaps a few of them will wake up.