Congress has constitutional power to stop Iran War
Jack Linthicum
make it stick.
http://writ.lp.findlaw.com/dean/20070209.html
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Leading Experts Say Congress Must Stop An Attack on Iran: Is That
Constitutionally Possible?
Absolutely - According to Experts on Both Sides of the Aisle
By JOHN W. DEAN
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Friday, Feb. 09, 2007
In a February 5 OpEd in the Los Angeles Times, Leon Weiss and Larry
Diamond explained that they were uncertain whether President Bush's
recent tough talk toward Iran was bully pulpit bluster, meant solely
to control Iran's dangerous actions, or if the President was again on
the road to war. (Weiss is a senior science fellow at the Center for
International Security at Cooperation at Stanford University; Diamond
is a senior fellow at Stanford's Hoover Institution.)
Accordingly, Weiss and Diamond called on Congress to find out which is
the case, and, if the President's intention is indeed warlike, to take
preventive action so that the President does not launch a war in Iran
- given his performance in Iraq. They suggest sending the President
what is, in effect, a veto-proof measure -- by placing the measure in
an appropriations bill - advising the President that "Congress will
not support a U.S. military strike on that country" unless authorized
by Congress. If Bush were to violate such a law, they urged, Congress
should file a lawsuit against him, and begin impeachment proceedings.
James Fallows expressed a similar concern about the Administration's
actions in Iran in his recent Atlantic Monthly column. "If we could
trust the Administration's ability to judge America's rational self-
interest, there would be no need to constrain its threatening gestures
toward Iran," Fallows suggested. Such trust, however, has not proven
to be merited. Nevertheless, Fallows concluded, even if the Bush
Administration has warlike intentions with respect to Iran, Congress
can do nothing other than "draw the line. It can say that war with
Iran is anathema to the interests of the United States and contrary to
the will of its elected representative."
These commentators have raised the question of whether Congress can,
in fact, prevent a president from taking the nation to war. This was
the subject of a recent Senate Judiciary Committee hearing chaired by
Senator Russ Feingold, where he sought to explore "not what Congress
should do, but what can Congress do."
While the hearing was focused on Iraq, and Congressional power in
general, Senator Edward Kennedy (D-MA) specifically asked the panel of
constitutional experts, during the questioning, about what legal
restrictions might be placed on the president's going to war in Iran.
Because the constitutional experts submitted formal statements to the
Committee, which are available online, and several of them are
terrific briefs on the law and relevant history, I have linked those
statements to their names. Rather than rely solely upon their own
summaries of their positions, given during the hearing, I have instead
cited from, and commented on, their prepared statements seeking to set
forth the essence of their positions.
What is especially significant, in my eyes, is that the conclusion
that Congress does indeed have power to significantly restrict the
Administration in its plans for war, transcends politics: Even experts
who have worked for Republican administrations have come to this
conclusion.
Statements of Constitutional Experts
Professor David Barron from the Harvard Law School :
"Congress possesses substantial constitutional authority to regulate
ongoing military operations, and even to bring them to an end," Barron
stated, explaining that while the power of the purse is the strongest
authority to control executive military actions, it is not the only
power. Barron's statement reviews relevant rulings of the Supreme
Court, and finds in them, and in the Constitution, no real limits on
Congress's powers to manage a war. In fact, his review of the sources
related to this question shows that to find otherwise would be
contrary to the clear intention of the nation's Founders to control
the chief executive.
Professor Robert Turner's statement was based as much on "a practical
appreciation of the imperatives of presidential military decision
making in a time of crisis as from a deep study of the case law."
While the committee was not seeking policy advice, Turner was offering
it. He concluded that "Congress does indeed possess the power to limit
the broad outlines of hostilities through legislation," but he
explained, in effect, why in his view, Congress should not use that
power, as a policy matter.
Dr. Louis Fisher's statement explained that not only does Congress
have the power to influence the direction of the nation's military
when at war, but its members have the responsibility to do so. Drawing
on history, he sets forth what the Framers of the Constitution did,
and why they did it. His statement is rich in historical quotations
that are not the now-hackneyed comments commonly found in discussion
of these issues.
For example, in 1793, Fisher reported, Madison called war "the true
nurse of executive aggrandizement. . . . In war, the honours and
emoluments of office are to be multiplied; and it is the executive
patronage under which they are to be enjoyed. It is in war, finally,
that laurels are to be gathered; and it is the executive brow they are
to encircle. The strongest passions and most dangerous weaknesses of
the human breast; ambition, avarice, vanity, the honourable or venial
love of fame, are all in conspiracy against the desire and duty of
peace."
And in 1861, Fisher advised the committee, Attorney General Edward
Bates explained that the President is Commander in Chief not because
he is "skilled in the art of war and qualified to marshal a host in
the field of battle." Rather he is Commander in Chief so whoever leads
U.S. armies to battle "is subject to the orders of the civil
magistrate, and he and his army are always 'subordinate to the civil
power.'"
Bradford Berenson took an approach similar to Professor Turner's.
Accepting that the Constitution and rulings make it very clear that
Congress has ample power and authority relating to this nation's
military activities, he instead made a policy case as to why Congress
should not exercise their power. He acknowledged the nature of his
statement when summarizing it for the committee, and quickly conceded,
"I think the constitutional scheme does give Congress broad authority
to terminate a war."
Finally, Professor Walter Dellinger
"In the absence of any congressional legislation on point, I would be
ready to conclude that a president can act on his own authority and
pursuant to his own judgment in matters of national security. Once
Congress has acted, however, the issue is fundamentally different. The
question then becomes whether the Act of Congress is itself
unconstitutional."
In short, all the experts on this politically diverse but balanced
panel agreed - in the abstract - that the Congress has the power to
control a warrior president. But, as Walter Dellinger noted, the
action itself must be constitutional.
Senator Kennedy thus, during the questioning, properly moved the
discussion from the abstract to the specific.
Can Congress Prevent the President from Going to War In Iran?
SEN. KENNEDY: "Question just quickly through the panel. Is the
President required to seek authorization from Congress before using
the military force against Iran?"
DR. FISHER: "I think if there's some action that's a threat to U.S.
soldiers I think a president has the power to repel sudden attacks,
protect U.S. troops. Otherwise, if it goes beyond isolated incidents
like that I think you're running into the preface of the Iraq
Resolution, which ...Congress amended ... to make sure it applied only to
Iraq. So I think by statute, by legislative policy, you can confine
the President to Iraq."
SEN. KENNEDY: "I'm interested in ... what actions can Congress take now
to ensure the President doesn't take us into war in Iran without
congressional authorization."
PROF. BARRON: "The question of whether the President could right now
initiate any actions against the Iran -- I think the proper way to
think about it is what authority does he have under the current Iraq
Authorization Statute, which would require some close
consideration. . . . William Rehnquist [as an assistant attorney
general] ... thought that a statutory limitation on the exercise of such
authority would be constitutionally valid. So I think the legal
question then comes to . . . no doubt Congress could restrict him from
going and widening the war, not just in terms of the amount of troops
used, but in the geographic area covered, and the only issue is
whether Congress has in effect already done so by virtue of the
limitations and bounds of the Authorization to Use Military Force in
Iraq that's already enacted."
SEN. KENNEDY: "Yes, Professor Turner."
PROF. TURNER: "Senator, let me just make nuanced point on this. John
Hart Ely in his War and Responsibility made the point that after
Congress declared war against Germany, FDR did not need a new
declaration of war to go into North Africa after the German forces.
Going into Cambodia I think was perfectly legal because the North
Vietnamese had taken over the whole side of Cambodia. . . . I could
see a situation in which Iran became involved in the Iraq War where
the President would be able to use force. . . . I think in terms of
launching a major war against Iran he should get and would need an
official [Congressional approval] for Iran. But there's some area in
there where I think he could act."
SEN. KENNEDY: "If Congress passed legislation requiring the President
to seek authorization from Congress before using military force
against Iran would the President be obliged to seek such authorization
before launching military action?"
MR. BERENSON: "Senator Kennedy, I think the questions that you're
posing falls into the sphere . . . of shared powers, and it's
important to recognize that for very important institutional reasons
the President is the first mover and the prime mover in this area of
shared powers. That has to do with the fact that unlike Congress which
needs to go through an often time consuming and difficult legislative
process, a process that can sometimes be stymied, the President has
the ability to receive information in real time to act to protect the
national security. So the President through the [clause vesting him
with executive power], through his executive authority in the absence
of legislation to the contrary by the Congress, I think unquestionably
would have authority to engage Iran in hostilities, whether in defense
of our forces inside the borders of Iraq or if he decided that we
needed to do something to address Iran's nuclear facilities. I do not
think he would be acting outside the scope of his constitutional
authority. That said, for major military actions most presidents have
recognized the importance of coming to Congress as a political and
practical matter. It is certainly unwise, if not unconstitutional, to
try to engage in large scale hostilities or engage a new enemy in
warfare without public support. And the best way to ensure that at the
outset is, of course, to come to Congress." (Emphasis added.)
SEN. KENNEDY: "My time, Mr. Chairman, is up. Mr. Dellinger -"
PROF. DELLINGER: "Briefly, I agree with Mr. Berenson's statement. I
believe that the President does have the authority to introduce U.S.
troops into situations of hostilities, including in Iran, in the
absence of congressional limitation as long as the anticipated scope
and duration does not amount to a war. I don't believe he has the
authority to send 500,000 troops into Iran, but he does have the
authority to deploy U.S. forces in hostilities.... That said, it is also
clear that Congress can impose limits either before or after the fact
on the size, scope, and duration of that. But I do believe there's a
consensus in the Executive Branch position that the President has the
authority to deploy U.S. forces into hostilities when Congress has not
spoken to the question."
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