Now that [tag]Senate[/tag] [tag]Republicans[/tag] have decided to end their obstructionist tactics and allow debate on the war in [tag]Iraq[/tag], it’s probably a good time to consider the options available to Congress right now, as far as the [tag]war[/tag] is concerned. Walter Dellinger and Christopher Schroeder, each of whom served as head of the Justice Department’s Office of Legal Counsel in the Clinton administration, noted in the NYT today that lawmakers have more options than they may realize.
By this point, you know the drill. White House allies note that Congress has the “power of the purse” and have offered — indeed, dared — Dems the chance to use it. The Democratic majority believes that even considering cutting off funds for the war would be reckless and perceived as borderline treasonous. As a result, Dems are left scrambling, looking for some other alternative.
Dellinger and Schroeder chalk this dynamic up to the notion that the broader debate has been “hijacked by sound-bite arguments.” They present a few points, but this was the key.
[W]hen the debate gets turned to the spending power, it has been soured by the second false claim: that using the power of the purse would somehow leave the troops high and dry in Iraq.
Suppose that Congress did decide that military forces financed by future defense appropriations acts would, after a certain date, have to be deployed elsewhere than Iraq. Such a requirement would not cut a single penny of support for the troops in Iraq before the redeployment date, or for those same troops redeployed outside Iraq after that date.
How could that possibly be seen as “cutting off” support for our fighting men and women? Only if a president chose to violate both the Congressional provision that the troops were to be redeployed and the laws providing for the pay, benefits and support of those in the military. Why would a president do something so perverse? Mr. Bush wouldn’t. Thus this claim — that he would be forced to defy the law by sending “unfunded” troops into combat — is simply a false threat intended to curtail meaningful debate.
One wonders if any Dems would want to bring this point up during a floor debate.
Dellinger and Schroeder also tackled the “all-or-nothing” argument, which insists that Congress cannot apply conditions to its spending bills for the war.
Proponents of this argument ignore longstanding executive branch legal opinions as well as Supreme Court precedent. The Supreme Court has long recognized Congress’s authority to set limits on the president’s military power, as in 1799 when it accepted Congress’s power to authorize the seizure of ships going to, but not coming from, French ports.
More important, the legal advisers of presidents have themselves repeatedly recognized this Congressional power. When former Chief Justice William Rehnquist was President Richard Nixon’s chief legal adviser in 1970, he flatly rejected the all-or-nothing claim. It is “both utterly illogical and unsupported by precedent,” he wrote, to think that Congress “may not delegate a lesser amount of authority to conduct military operations.”
Mr. Rehnquist cited numerous historical examples including a 1940 law prohibiting the deployment of drafted soldiers outside the Western Hemisphere. More recently, under President Clinton, we in the office of legal counsel repeatedly recognized the authority of Congress to limit the scope, nature and duration of military engagements.
The all-or-nothing argument defies not only precedent but common sense. Consider this scenario: Congress authorizes the president to send 20,000 American troops to a strife-torn country as part of a coalition to defend refugee camps from ethnic cleansing; however, once our forces are engaged, the president unilaterally decides to vastly increase our involvement by sending 350,000 combat troops to fight for one side in a religious civil war in that country, leaving the refugees undefended.
Surely no one really thinks that in such a situation Congress would be faced with this stark choice: withdraw entirely from a country, or do nothing about the unlimited expansion by presidential fiat. Whatever limits there are on Congressional power to determine particular tactical questions, decisions about the scope and goals of military action are easily within its authority.
Helpful information to keep in mind as the debate gets underway in the Senate.