Congress, White House Compete for Control of War Policy

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.