Senator Edward Kennedy has proposed legislation that would prohibit the expenditure of federal funds to support any increase in the number of troops stationed in Iraq. While I enthusiastically support this legislation on policy grounds, I reluctantly conclude that it is unconstitutional.
I opposed the invasion of Iraq because it was morally wrong as well as contrary to America’s national interests. I oppose the President’s proposed "surge" of troops into Iraq for the same reasons. However, as wrong and as unwise as the proposed escalation is, the Congress cannot, by law, prevent this escalation from taking place. Its choices are to either repeal the Iraq War Resolution, or to cut off any and all funds for the Iraq conflict.
The Constitution vests in Congress the power to raise and support armies and the power to declare war, but it makes the President the Commander in Chief of the army and navy. Congress may not use the spending power, or any of its enumerated powers, to invade the prerogative of the President to deploy our armed forces, as he sees fit, in defense of this Nation or in the conduct of any authorized military action. So long as the invasion and occupation of Iraq remains authorized by Congress, Congress is powerless to dictate strategy or tactics to the President.
The principle of the Separation of Powers is that no branch of the federal government may exercise or unduly interfere with the functions that are assigned to another branch. The purpose of this political philosophy and fundamental legal doctrine is to prevent any person or small group of people from collecting in their own hands all of the threads of governmental power.
The power of the purse is vast. Congress has the power to appropriate funds for virtually any purpose – for anything which may be said to promote the "general welfare" or the "common defense." Furthermore, Congress is specifically granted the power to decide whether or not the United States will even have an army and a navy. The size and extent of our armed forces, and the weapons and support that they will have at their disposal, are entirely up to Congress.
What Congress may not do, however, is to conduct either offensive or defensive military action. All of the traditional indicia of constitutional interpretation support the proposition that this power is reserved to the President alone. The recorded intentions of the framers, judicial precedent, our Nation’s military traditions beginning with the Revolutionary War, and most importantly of all, the words of the Constitution itself, all point towards the conclusion that President, as Commander in Chief, has a free hand to make decisions regarding where and how to use our military force in the course of defending the United States or in the course of any offensive military action which has been approved by Congress.
Accordingly, Senator Edward Kennedy’s proposed bill, which provides that no funds may be expended to support the addition of military personnel in Iraq beyond current force levels, is unconstitutional.
What can Congress do in the present circumstance? It could repeal the October, 2002, resolution that authorized the President to take military action in Iraq. Similarly, it could cut off all funding for offensive military action in Iraq. Both of these decisions would be within Congress’ power to "declare war," and neither decision would interfere with the constitutionally assigned power of the President as Commander in Chief. Congress has the power to order the President to cease undertaking offensive military action in any particular conflict, either directly or by depriving the military of resources to carry out the action.