Will Congress Cave?

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Bush Administration, The Constitution

There was a blogger conference call today with Sen. Harry Reid, who (remarkably) didn’t read us a prepared statement but simply took our questions. Bob Geiger blogs about it here. See also Chicago Dyke at Corrente.

In the course of the call, I brought up the apparent buildup to war in Iran, and let him know that y’all (including me) are worried to death that the Senate is going to cave in to Bush’s warmongering. Actually, I think I said “wimp out.” Or something like that. He assured me the Senate would stand up to the White House on this matter, as well as taking on a stronger oversight role in Iraq.

In the Washington Post today, Fred Barbash has quite a good column asking a good question — Why Would Congress Surrender?

At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the “battlefield” over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by presidents yet unborn, armed with the precedents being set right now.

In these matters, there is no such thing as inaction. In a contest between two branches over separation of powers, silence speaks as powerfully as words. …

… Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it’s as good as law.

This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch. …

… Article II does indeed make the president commander in chief.

But Article I gives Congress not merely the power of the purse. It vests in the House and Senate the authority to “declare war,” to “make rules concerning captures on land and water,” to “provide for the common defense,” to “raise and support Armies,” and to “make rules for the government and regulation of the land and naval forces.” In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq.

War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to “make war.”

The delegates changed the wording to “declare war,” not to remove Congress from the process but to leave the commander in chief the “power to repel sudden attacks,” as James Madison put it. “The executive should be able to repel and not to commence war,” agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because “no executive would ever make war but when the nation will support it,” said delegate Pierce Butler.

As I wrote here, there is no way in hell the authors of the Constitution intended to give the President the kind of war powers Bush has assumed. But the parameters of the presidential war powers have been pushed outward for a long time. Until now the chief executives have been reasonably responsible, if only because they were mindful of public opinion. But now we’ve got a Creature in the Oval Office with no sense of responsibility at all, but with some kind of unresolved adolescent resentment against authority other than his own.

For more than two centuries we’ve respected the Constitution as the Law of the Land. Certainly there have been many disagreements about what this or that clause means, or how to interpret a 17th century document in the light of 21st century reality. Even presidents have taken actions that were found to be unconstitutional later on. But I can’t think of another time in our history in which we were threatened by an executive branch that just plain wanted to blow the Constitution off and rule any way they damn well pleased.

This is a precedent Congress must not allow to stand. They must not just try to keep the Creature in check for the next two years until his term expires. Congress’s authorities must be made clear.

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9 Comments

9 Comments

  1. eap  •  Jan 31, 2007 @2:52 pm

    I heard a snippet of a Bush interview this morning on Air America…Bush saying (in his whiney, defensive voice) “We value the Constitution…” Took me a while to figure out why that comment bothered me so much (other than the whine). It seemed to say to me that they view the Constitution only as a part (albeit an important part) of what they do, rather than being the BASIS for how they govern…as if it were some type of reference tool…

  2. Josh Yelon  •  Jan 31, 2007 @3:03 pm

    I feel the congress should pass a “post-traumatic stress relief bill” that limits the amount of time that a soldier can be forced to spend in a war zone. Set the threshold such that a small percentage of the people in Iraq are over the limit, therefore forcing the president to bring that small percentage home. Specify that any soldier who is forced to overstay the limit and who experiences PTSD can sue for damages.

    I don’t know if this is within the constitutional rights of the congress (although “make rules for the government and regulation of the land and naval forces” is certainly promising.)

    I think this would be politically pretty effective.

  3. Donna  •  Jan 31, 2007 @3:27 pm

    Such a simple right-on idea, Josh Yelon! Thanks. I would be for letting this be a bit bigger than a ‘small percentage’…..and I would be for including this idea in wider legislation that re-asserts and clarifies Congressional responsibilities vis a vis war.

  4. Madison Guy  •  Jan 31, 2007 @4:39 pm

    Glad you asked Reid the question about Iran. Wish I could more confidently believe him. The only way to stop Bush is to impeach him and get him and Cheney out of there, but I haven’t seen any signs that the congressional establishment is ready to consider that.

    Short of impeachment, all Congress can do is make angry noises. But with Bush in control of th ecourts and the Justice Department, there isn’t much Congress can do to force bush to do anything — as Cheney keeps gleefully reminding us.

  5. felicity smith  •  Jan 31, 2007 @6:34 pm

    As much as I detest Bush, impeachment may prove in the long run to let skirt the myriads of others who are equally responsible for what we have gone through for 6 years. Sort of like slicing off the visible part of the iceberg while the submerged part remains and is ultimately more lethal.

    Pelosi’s remark that impeachment was off the table threw me for a loop until I gave it some thought. I think, pure supposition, that her goal is to discredit the domestic and foreign policies of the Republican party – which finally is what has to be done.

    Impeachment may sink Bush but there’s a huge flotilla afloat that believes and will relentlessly push rule of the rich, by the rich and for the rich – our republic be damned. And, should there be another 9/11 during an impeachment proceeding, the responsibility will fall in the laps of the Dems. Unjustified of course, but any other reaction would be a-typical of human behavior.

  6. Doug Hughes  •  Jan 31, 2007 @7:32 pm

    Josh may have hit on the method to rein in the madness. I would love for you to pass this along, Barbara. Original ideas are in short supply. If this would pass constitutional muster with the Supreme Court, and it looks to me like it would, someone with initiative needs to draft the legislation.

  7. joanr16  •  Jan 31, 2007 @7:41 pm

    I’m afraid I haven’t much confidence in Reid, either. Although I must add another nod to Josh Yelon’s idea. Haven’t brushed off the Constitution in order to read up on the scope of Congress re “land and naval forces.” But such a law would support the well-being and proper conditioning of our troops, while creating de facto reductions, instead of escalations.

  8. marijam  •  Jan 31, 2007 @8:45 pm

    I know one thing, the founders did not want a King with a King’s powers. In my opinion, and I’m no Constitutional scholar, the Congress was meant to have more say, the most important say, that’s why it was mentioned in the first article. Was it George Washington alone who decided we would go to war against the British? Republicans like to bring up Lincoln – I think that was a special case, specifically address by the constitution in the section regarding ‘in times of insurrection’. I don’t think he would have dared do such a thing against another nation…am I wrong?

  9. c u n d gulag  •  Feb 1, 2007 @5:54 am

    This “Creature” must be stopped. With whatever means are at our disposal.
    This means Congress MUST ACT!
    And I think they are. I think they’re doing it the way they want to. Quitely and slowly.
    It may seem to slow to us, but if it went too fast, it would seem like another Clinton deal – too much, too fast. Too opportunistic. Too stupid.
    In the 90’s, we went through and impeachment over a “hummer.”
    Now, we need to start one over under-protected Humvee’s.
    Let’s see those on the “Right” argue that one…



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