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Congress, White House Compete for Control of War Policy

April 2, 2007 at 6:35 PM EDT
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MARGARET WARNER: In late March, both the House and the Senate passed bills imposing timetables on the Iraq war.

The House bill is the stronger. It requires that combat troops leave Iraq by the end of August 2008, or earlier if the Iraqi government doesn’t meet certain benchmarks. The Senate bill ordered troop redeployment to begin within 120 days, with a nonbinding goal of removing all combat forces by the end of March 2008.

The two versions still have to be reconciled in conference, and the president has vowed to veto either one. So is such legislation constitutional, or does it infringe on the president’s constitutional powers to conduct war?

To explore that, we turn to two former staff attorneys in the Justice Department’s Office of Legal Counsel. The office advises the attorney general and White House on issues of constitutional law and statutory interpretation.

Lee Casey served during the first Bush administration. He’s now in private practice in Washington. And Christopher Schroeder served in the Clinton administration. He’s now a law professor at Duke University.

Welcome, gentlemen.

Lee Casey, beginning with you, are these laws constitutional?

LEE CASEY, Former U.S. Staff Attorney: No, I don’t think they are. Basically, both the House and the Senate have attempted to come up with, shall we call it, a politically painless way of ending the war.

Congress could end the war. Congress could cut off money or actually, in the situation we now find ourselves, Congress could simply not vote new money, and that would ultimately require the president to bring the troops home. But it would also require that Congress pay a fairly substantial political price.

MARGARET WARNER: But what is unconstitutional? What provisions of the Constitution does this violate?

LEE CASEY: Well, the Constitution divides the United States war-making power between the president and Congress. Congress has very important authorities.

Congress declares war. Congress establishes an Army and Navy. Congress establishes rules for the governance of the Army and the Navy. But the president is the commander-in-chief. In terms of how the Army and Navy are used, the strategic decisions, the tactical decisions, those are the president’s.

MARGARET WARNER: Now, Professor Schroeder, you, I gather, think these are constitutional. Why?

CHRISTOPHER SCHROEDER, Former U.S. Staff Attorney: Absolutely. I don’t think any provision of any of the proposals that are unconstitutional.

We’ve recognized from the very earliest days of the republic that the Congress, using those powers that Mr. Casey enumerated, and others, can get us involved, if they want to, in a limited war. They can decide to use naval forces and not land forces. They can decide the number of troops that are available. They could decide to prohibit the use of land mines, to give you a modern example, if they wanted to.

Congress has exercised that authority from the very earliest days. Presidents have recognized and complied with those constraints, and the Supreme Court has upheld them very early on, in a series of cases of the first that got to the Supreme Court having to do with the so-called quasi-war with France.

So Congress’s authority is not simply limited to deciding an “all or nothing” question of funds or no funds. It can define the terms, and the nature, and the scope of the conflict, and that’s all within the powers of the Congress to exercise if it sees fit.

Power to make strategic decisions

MARGARET WARNER: And, just briefly, what provision of the Constitution gives Congress that power, not just the power to fund or not fund, but the power to actually make, in your view, some strategic decisions?

CHRISTOPHER SCHROEDER: Well, the cases that the Supreme Court dealt with back in 1800 were dealing with the "declare war" authority of Congress. And Congress, in the case of the quasi-war with France, had made a decision to cut off commerce with France, to build up the Navy, and to authorize certain war-like or military actions, including the seizing of ships, American ships that were trying to sail into French ports in the Caribbean, as a means of enforcing its desire to stop commerce with France.

When President Adams authorized a naval captain to seize a ship that was coming from a French port, not going to it, that captain was eventually sued, and the Supreme Court held that the president's authority was trumped by Congress's restriction on the scope of the war.

And in that case and in a series of cases from that era, the Supreme Court clearly recognized that the power to declare war includes the power to declare a limited war and to define the terms and conditions in which our troops will be engaged.

MARGARET WARNER: So, Lee Casey, Congress does have the power, and do you agree, the power to limit the scope of war? It's not just all or nothing?

LEE CASEY: Right. Well, no, I actually disagree with Professor Schroeder's view of those cases. Those cases involved a question actually of prize money.

The Constitution gives Congress the specific authority to set rules for captures on land and sea. So Congress gets to decide how much money a naval force will get when it makes a foreign capture. And in that context, yes, Congress has a great deal of authority, and I'm afraid the poor captains involved in these cases did not get their money. We don't actually do that these days.

MARGARET WARNER: But you don't think that's on point for this kind of thing?

LEE CASEY: I don't think that's on point. I mean, indeed, the Office of Legal Counsel, where we both worked, has a long series of opinions that says Congress can do a lot with its financial powers, with its spending power. What it can't do is attempt to direct how the president exercises his constitutional authority, and including especially the president's authority as commander-in-chief.

Authority to declare war

MARGARET WARNER: So, Professor Schroeder, what provision of the Constitution do you point to that says the Congress can make those kinds of decisions?

CHRISTOPHER SCHROEDER: Well, I point to the authority of Congress to declare war, the authority of Congress to make rules and regulations for the Armed Services, the authority to raise and support an Army, and the necessary and proper clause of the Constitution, which gives the Congress the authority to make all laws necessary and proper for the carrying out of any of the powers in the document, not just the congressional powers.

If I can borrow an expression from Secretary Rumsfeld who said, "We go to war with the Army that we have," I think it's just as appropriate to say, "We go to war with the Army that Congress provides." And if Congress wants to place a restriction, a limitation on the scope of an engagement, as it did during the Vietnam era, for instance, in prohibiting troops from going into Laos and Thailand and later land forces from invading Cambodia, that authority falls well within the enumerated powers of the Congress.

MARGARET WARNER: What about those precedents in the Vietnam War and the end-years of the Vietnam War?

LEE CASEY: There's no question that various congresses over the years have attempted to limit the president's war-making power. Those attempts have not been tested in court. Ultimately, it becomes a question of the political will of the president and the political will of Congress.

In some cases, the president has complied, has concluded for reasons best known to himself that...

MARGARET WARNER: So they've managed to side-step these constitutional...

LEE CASEY: Right. A good example, frankly, is the war powers resolution, as we presidentialists call it, and the War Powers Act, as people who favor Congress more call it.

Congress passed that statute over the president's veto in the 1970s. The presidents have generally claimed it to be unconstitutional but have also, almost invariably, complied with it. So it all depends on whether the individual players at any given time are ready to mix it up.

The 2002 Iraq resolution

MARGARET WARNER: Professor Schroeder, let me ask you about one other issue or related issue. Does this question relate at all to the fact that Congress authorized the president to go to war in Iraq back in October '02? In other words, is Congress resting on that authority in any way, or does that put Congress in a weaker position, or is it not relevant to this discussion?

CHRISTOPHER SCHROEDER: Oh, it is relevant. And I think, if anybody is resting on it, the president is resting on it, because the 2002 Iraq resolution -- which is, by the way, the authorization of a limited war. You can't use that resolution to invade Syria; you can't use that resolution to go fight the Hezbollah in Lebanon.

It's a resolution, however, that gives the president a broad scope of authority to engage in armed conflict and use force in Iraq to protect the national security interests that are put at risk by Iraq, as well as to enforce the U.N. resolutions.

That's really the basis of the president's authority to be there, and it's why, quite aside from the debate that's going on now over the supplemental, the approaches of Senator Biden and Levin to revise the scope of that authority, repeal the 2002 resolution, and put something narrower in its place makes a good deal of constitutional sense, because Congress would be exercising its clearly recognized authority to define a limited engagement in Iraq.

MARGARET WARNER: Would you agree with that, Lee Casey, that if Congress wanted to do something that was constitutional, in your view, it could either totally cut off funding or that it could rescind this authorization for the war in Iraq?

LEE CASEY: Well, I'm not sure that follows. It is certainly true that, if at this moment in time the president decided to invade Syria, he would be doing so on his own inherent constitutional authority. So he would be acting in the tripartheid system that Justice Jackson articulated at the weakest level, not necessarily weak in terms of the vigor of the power, but he wouldn't have congressional support, so that would be clear.

Now, on the other hand, with respect to Iraq, Congress did authorize the war. It is up to the president to prosecute that war. And when peace comes, frankly, traditionally it has been a matter for the president, in terms of negotiating and signing a peace treaty. He needs to get the Senate's consent, of course.

And one other thing. In addition, we're dealing here with two resolutions, because while it is true that the Iraqi resolution was relied on principally for the Iraq war, there is the war on terror resolution and al-Qaida is operating in Iraq.

MARGARET WARNER: Professor Schroeder, five seconds. Do you think that applies?

CHRISTOPHER SCHROEDER: I think it applies to a degree. It doesn't apply to nearly the scope of operations in which the Armed Services in Iraq are engaged currently, but it does apply to a degree. I agree with you.

MARGARET WARNER: All right. Professor Schroeder and Lee Casey, thank you both.

CHRISTOPHER SCHROEDER: Thank you.