Teddy Kennedy, Congress and the Surge

Sen. Teddy Kennedy yesterday outlined in a speech to the National Press Club and a column at the Huffington Post his arguments for a bill to "prohibit the use of funds for an escalation of United States forces in Iraq above the numbers existing as of January 9, 2007″ absent specific congressional authority to do otherwise. His stated goal is to "reclaim the rightful role of Congress and the people’s right to a full voice in the president’s plan to send more troops to Iraq."

This has caused a lot of sturm und drang across the political spectrum. Many on the Left are hailing this, arguing that "stopping escalation is why Democrats were elected to Congress" and urging readers to "show support for Congress to stop more useless slaughter." Many on the Right is calling it an attempt to "rewrite both the letter and spirit" of the Constitution, "a recipe for disaster cooked up by an unaccomplished fool who has never done any great service for America," and even "caving to al Qaeda."

Does Congress have the Constitutional power to limit the number of troops sent to Iraq? Big Tent Democrat argues that the Congress’ de facto declaration of war in October 2002 Kennedy’s proposed law "would be an unconstitutional violation of the separation of powers, impinging on the President’s power as Commander in Chief in Wartime." The Center for American Progress, though, documents extensively numerous instances where Congress has made similar restrictions in the past. I’m not an attorney, but there’s no obvious reason why the current authorization would be legally/Constitutionally different from the Tonkin Gulf Resolution that authorized war in Vietnam.

The Constitution created, in Edward Corwin’s famous formulation, "an invitation to struggle for the privilege of directing American foreign policy." The Congress has the authority to declare war, set the size of the armed forces, and controls the purse strings. The President is the commander-in-chief of those forces and exercises day-to-day operational control, subject to the oversight of the various congressional committees charged with raising the army and navy and allocating funding.

As Troy University political scientist Steven Taylor observes, the main obstacle is not Constitutional but practical: "such action would require substantial bipartisan resoluteness on the issue." It’s pretty clear that does not exist.

Even with public opinion rather solidly against escalating the war in Iraq, there would be an instant backlash. Most Democratic leaders understand this. As Slate’s John Dickerson observes, "They don’t want an effort to stop funding for the new strategy to be misinterpreted as a lack of support for American troops." Teddy Roosevelt demonstrated this a century ago in a similar dispute: "The head of the Senate Committee on Naval Affairs announced that the fleet should not and could not go because Congress would refuse to appropriate the money — he being from an Eastern seaboard State. However, I announced in response that I had enough money to take the fleet around to the Pacific anyhow, that the fleet would certainly go, and that if Congress did not choose to appropriate enough money to get the fleet back, why, it would stay in the Pacific. There was no further difficulty about the money."

Congress has the power to do what Kennedy wants. It almost certainly does not have the political will.


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