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A tale of co-equal branches of government during time of war.

Our constitution grants the President tremendous power when the country is at war. That’s a fact. Setting aside questions of legality, as it pertains to the invasion of Iraq, President Bush has jealously asserted this power. But he didn’t stop there. He coveted the power of Congress too. And with his effluent signing statements, the aid of a craven, stooge Congress—led by his own party, and the sheer audacity of the executive branch as a whole, he has managed to effectively dispense with the burden of congressional oversight altogether.

People are justifiably angry and confused by this blatant attempt to usurp legislative authority. Citizens are rightly appalled that even members of Congress themselves seem to think that neither the People nor their elected officials have power to match Bush’s own.

Good news. Bush is wrong and so are those that have come to believe we are incapable of bringing his recklessness to heel. We have the history to prove that Congress can regulate the enormous power conferred upon the office of the presidency in wartime, or Sword, with the power of Purse.

Id, meet Ego

According to the Congressional Research Service:

In modern times, federal courts have been reticent to decide cases involving war powers on the merits, including those involving appropriations measures. However, in discussing whether a particular challenge raises non-justiciable questions as involving matters textually committed to the political branches by the Constitution, courts have generally reiterated the understanding of a shared allocation of war powers. That is, it is generally agreed that Congress cannot “direct campaigns,” but that Congress can regulate the conduct of hostilities, at least to some degree, and that Congress can limit military operations without the risk of a presidential veto simply by refusing to appropriate funds."

Source: Congressional Authority To Limit U.S. Military Operations in Iraq, dated January 29, 2007 (PDF)

There are several options available to a Congress that needs to rein in a feckless wartime president, some better than others. The Congressional Research Service notes that, "the use of funding cutoffs and restrictions to curtail or terminate the President’s use of U.S. military force abroad has proven to be much more efficacious in giving effect to Congress’s policy views in this area than has the War Powers Resolution."

The path to restoring sanity and balance is clear.

If Democratic leadership in this Congress is serious about taking action designed to ensure that America makes, "Not a precipitous withdrawal that ignores the possibility of further chaos. But an immediate shift toward strong regionally-based diplomacy, a policy that takes our soldiers off the streets of Iraq's cities, and a formula that will in short order allow our combat forces to leave Iraq,” then it’s time to use the mighty power of Purse.

It wouldn’t be the first time Congress flexed its muscle against presidential war powers. In fact, the Congress recently used congressional funding limitations to prevent or reduce U.S. military deployments overseas, under conditions far less demanding of immediate intervention:

Somalia.  Section 8151 of the Department of Defense Appropriations Act for FY1994, P.L. 103-139;107 Stat 1418, signed November 11, 1993, approved the use of U.S. Armed Forces for certain purposes, including combat forces in a security role to protect United Nations units in Somalia, but cut off funding after March 31, 1994, except for a limited number of military personnel to protect American diplomatic personnel and American citizens, unless further authorized by Congress.  Additionally, section 8135 of the Department of Defense Appropriations Act for FY1995, P.L. 103-335; 108 Stat. 2599, signed September 30, 1994, stated that “None of the funds appropriated by this Act may be used for the continuous presence in Somalia of United States military personnel, except for the protection of United States personnel, after September 30, 1994.”

Rwanda.  Through Title IX of the Department of Defense Appropriations Act for FY1995, P.L.103-335 108 Stat. 2599, signed September 30, 1994, Congress stipulated that “no funds provided in this Act are available for United States military participation to continue Operation Support Hope in or around Rwanda after October 7, 1994, except for any action that is necessary to protect the lives of United States citizens.”

Source: Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments, updated January 16, 2007 (PDF)

So, claiming it can’t be done won’t cut it.

And what about using the power of Purse to end or curtail funding for private contractors that provide military or paramilitary services in Iraq? There’s a good chance Congress can close the nation’s wallet to Bush there too.

According to the Congressional Research Service, "Although not directly analogous to efforts to seek withdrawal of American military forces from abroad by use of funding cutoffs, Congress has used funding restrictions to limit or prevent foreign activities of a military or paramilitary nature. As such, these actions represent alternative methods to affect elements of presidentially sanctioned foreign military operations."

In 1984, controversy over U.S. assistance to the opponents of the Nicaraguan government (the anti-Sandinista guerrillas known as the “contras”) led to a prohibition on such assistance in a continuing appropriations bill.  This legislative ban is summarized below.

The continuing appropriations resolution for FY1985, P.L. 98-473, 98 Stat. 1935-1937, signed October 12, 1984, provided that “During fiscal year 1985, no funds available to the Central Intelligence Agency, the
Department of Defense, or any other agency or entity of the United States involved in intelligence activities may be obligated or expended for the purpose or which would have the effect of supporting, directly or
indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization, movement or individual.”  This legislation also provided that after February 28, 1985, if the President made a report to
Congress specifying certain criteria, including the need to provide further assistance for “military or paramilitary operations” prohibited by this statute, he could expend $14 million in funds if Congress passed a joint resolution approving such action.

Source: Congressional Use of Funding Cutoffs Since 1970 Involving U.S. Military Forces and Overseas Deployments, updated January 16, 2007 (PDF)

There we have it.

Congress has no excuses to keep bowing in deference to Bush; it has exercised this power before and the American public elected them to do it again. Now.

Hat tip to Secrecy News, from the Federation of American Scientists Project on Government Secrecy.

Originally posted to Kimberley on Tue Feb 06, 2007 at 07:19 AM PST.


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Comment Preferences

  •  That's my story (7+ / 0-)

    I'm sticking to it.

    Time flies, whether you're having fun or not.

    by Kimberley on Tue Feb 06, 2007 at 07:19:17 AM PST

  •  Iraq War Funding - Senate Armed Services NOW (2+ / 0-)
    Recommended by:
    Kimberley, kindertotenlieder

    on CSPAN 3

    You might use this diary as a Live Thread ...

  •  I'm so angry I'm supporting boycotting .... (1+ / 0-)
    Recommended by:

    ... the industries of the intransigent Red States. For example, off the top of my head, Kentucky gets no tourism, bourbon, tobacco or horsebetting money until Senators McConnell and Bunning get on the bus. Sorry, Churchill Downs, there's always next year.

    "It does not require many words to speak the truth." -- Chief Joseph, native American leader (1840-1904)

    by highfive on Tue Feb 06, 2007 at 07:25:06 AM PST

  •  the question i have (0+ / 0-)

    i don't disagree that there is precedent for cutting off funding. That being said -- we suspect that say, if Congress passed a resolution (binding) capping troops w/ a timeline for redeployment and establishing diplomatic measures, that the Decider would just ignore it, citing his signing statement.

    to what extent are we advocating for cutting of funding just to not address that we are on the brink of a constitutional crisis? If Congress unequivocally had the authority to regulate use of US armed forces, would be be opting for cutting of funding?

    •  I understood the (0+ / 0-)

      information to indicate that Bush could not veto a funding reduction. If he can't veto it, he certainly can't write it away with a little note either.

      The courts won't give Congress latitude to say what happens ("direct campaigns") though. They will only uphold congressional authority to regulate Bush's campaign through the budget. That's my understanding of this.

      If he misdirects the allocations, in spite of the express intent of Congress, then he's clearly breaking the law. What would happen then? I don't know. Whatever went down after that, I'm pretty sure it would involve a truckload of litigators.

      Time flies, whether you're having fun or not.

      by Kimberley on Tue Feb 06, 2007 at 07:56:30 AM PST

      [ Parent ]

      •  ok (0+ / 0-)

        They will only uphold congressional authority to regulate Bush's campaign through the budget. That's my understanding of this.

        This was the part I missed. I think I read an argument recently that Congress has the authority to do more, but I'll have to scrounge around to find the source for this line of argument.

      •  one example (0+ / 0-)

        Constitutional scholars have long wrangled about the exact delineation between the Congress' authority to declare and regulate the conduct of war, and the president's authority as commander-in-chief. But Kinkopf argues there was no doubt about the power of Congress to limit the numbers of troops in Iraq.

        "As commander-in-chief, the president's role is to prosecute the war that Congress has authorized," wrote Kinkopf. "The president may not go beyond this authorization."

        Kinkopf says that the law currently authorizing the war, passed by Congress in 2002, clearly includes the authority for the kind of surge in troop numbers currently being considered.

        •  Scholars have argued (0+ / 0-)

          about the president's discretionary spending in spite of congressional appropriations, but I don't think it's ever been tested.

          What scholars do seem to agree on is that it is unlikely that the courts would forbid congress from exercising its power to appropriate for war, which would effectively negate its war powers.

          So, apparently, it's time to push back and force Bush into court over it.

          Time flies, whether you're having fun or not.

          by Kimberley on Tue Feb 06, 2007 at 08:33:27 AM PST

          [ Parent ]

  •  kimberly proved unified field theory (0+ / 0-)

    on a post-it note

    damn fine diary.  should be spinach to a couple popeye-lite senators.  

    © 2007 back in the cave

    "Life is a dream for the wise, a game for the fool, a comedy for the rich, a tragedy for the poor." --Sholem Yakov Rabinowitz

    by Back in the Cave on Wed Feb 07, 2007 at 02:47:12 AM PST

  •  Well written. Came too late to rec, but approps (0+ / 0-)

    or budget power in the House can absolutely work, if it is brought to bear in the broader context of getting out, soon.

    Thanks for the insight.  New info to me.

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