Congress Has More than Purse Power over War
March 9, 2007
A crucial debate is under way, not only about whether and how to end the Iraq War but also about the powers of Congress during wartime.
As the House and Senate leadership finally have introduced legislation establishing benchmarks and end points for the Iraq War, Republican cheerleaders for the war insist that Congress has no right to interfere with the President’s war powers as commander in chief. They insist that the Democrats have no authority to “micromanage” Bush’s decisions. And they claim that all Congress can do is fund or defund, arguing that there is no other tool at its disposal.
Congress’s war powers are numerous, and its constitutional authority to “make all laws” for executing those powers could not be more sweeping. Here’s how Daniel Webster, Henry Clay, Robert La Follette, and Russ Feingold have described them.
In this argument, they are taking comfort from the lead story in the Week in Review section of the Sunday New York Times of March 4. Author Jeffrey Rosen asserted that Congress “has no say over how the war is actually prosecuted.” And he said if Congress tries to do so, it would be overreaching and could provoke a constitutional crisis.
But that is not what our Constitution states. And it is not what some of our leading authorities on this question have said over time.
The Constitution gives to Congress, in Article 1, Section 8, the powers:
“To define and punish piracies and felonies committed on the high seas and offenses against the law of nations;
“To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
“To provide and maintain a Navy;
“To make rules for the government and regulation of the land and naval forces;”
And, “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”
These powers are numerous, and the authority to “make all laws” for executing those powers could not be more sweeping.
Throughout our history, Presidents have tried to usurp that authority. In doing so, they have run into the principled opposition of some of our foremost constitutional authorities in the Senate.
Here is Daniel Webster, speaking about the Mexican War, on November 6, 1846:
“If the war should become odious to the people, if they shall disapprove the objects for which it appears to be prosecuted, then it will be the bounden duty of their representatives in Congress to demand of the President a full statement of his objects and purposes, and if those purposes shall appear to them not to be founded in the public good, or not consistent with the honor and character of the country, then it shall be their duty to put an end to it, by the exercise of their constitutional authority. . . . If Congress, in whom the war-making power is expressly made to reside, is to have no voice in the declaration or continuance of war, if it is not to judge of the beginning or carrying it on, then we depart at once from the Constitution.”
And here is Henry Clay, a year later, on November 13, 1847:
“Must we blindly continue the conflict without any visible object, or any prospect of a definite termination? . . . If it be contended that war having been once commenced, the President of the United States may direct it to the accomplishment of any object he pleases, without consulting and without any regard to the will of Congress, the Convention will have utterly failed in guarding the nation against the abuses and ambition of a single individual. Either Congress or the President must have the right of determining upon the objects for which a war shall be prosecuted. There is no other alternative. If the President possess it and may prosecute it and may prosecute it for the objects against the will of Congress, where is the difference between our free government and that of any other nation which may be governed by an absolute czar, emperor, or king?”
And here is Robert La Follette, October 6, 1917:
“A minor duty may be evaded by Congress, a minor responsibility avoided without disaster resulting, but on this momentous question there can be no evasion, no shirking of duty of the Congress, without subverting our form of government. If our Constitution is to be changed so as to give the President the power to determine the purposes for which this Nation will engage in war, and the conditions on which it will make peace, then let that change be made deliberately by an amendment to the Constitution proposed and adopted in a constitutional manner. It would be bad enough if the Constitution clothed the President with any such power, but to exercise such power without constitutional authority cannot long be tolerated if even the forms of free government are to remain.”
Finally, here is Russ Feingold, January 30, 2007:
“To hear some in the Administration talk, it as if these [constitutional] provisions were written in invisible ink. They were not. These powers are a clear and direct statement from the founders of our republic that Congress has authority to declare, to define, and ultimately to end a war. . . . As James Madison wrote, ‘Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.’ . . . If and when Congress acts on the will of the American people by ending our involvement in the Iraq War, Congress will be performing the role assigned it by the founding fathers, defining the nature of our military commitments and acting as a check on a President whose policies our weakening our nation. . . . In the United States of America, the people are sovereign, not the President. It is Congress’s responsibility to challenge an Administration that persists in a war that is misguided and that the country opposes. We cannot simply wring our hands and complain about the Administration’s policy. We cannot just pass resolutions saying “your policy is mistaken.” And we can’t stand idly by and tell ourselves that it’s the President’s job to fix the mess he made. It’s our job to fix the mess, and if we don’t do so, we are abdicating our responsibilities.”
Today, we face a crisis brought on by the “abuse and ambition of a single individual,” as Henry Clay put it. Congress, which represents the people, has full constitutional authority to assert the people’s will over this single individual and his senseless warmaking.