Congress Must Stop an Attack on Iran: Is That Constitutionally Possible?
Gandalf Grey
Constitutionally Possible?
By John W. Dean
Created Feb 9 2007 - 10:19am
- from FindLaw (posted with permission) [1]
Absolutely - According to Experts on Both Sides of the Aisle
In a February 5 OpEd in the Los Angeles Times [2], 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 [3]. "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 [4] from the Harvard Law School opened the testimony.
Barron is a graduate of Harvard Law School and clerked for Judge Reinhardt
on the U.S. Court of Appeals for the Ninth Circuit, as well as for Associate
Justice Stevens on the United States Supreme Court. He served as an attorney
advisor in the Office of Legal Counsel at the Department of Justice, before
joining the faculty at Harvard Law School in 1999.
"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 [5] graduated from the law school at the University
of Virginia and is now a professor there. He co-founded the school's Center
for National Security Law. He served as the National Security Advisor to
Senator Robert Griffin (R-MI) in the mid 1970's and worked at the Pentagon,
the White House, and the State Department during the Reagan Administration,
and from 2001 to 2003 worked in the Bush White House Counsel's office.
Professor 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 [6] is a Constitutional Law Specialist at the Library of
Congress. Before joining the Library of Congress, he spent thirty-six years
at the Congressional Research Service. Dr. Fisher has published a number of
authoritative books relating to legislative versus executive branch
conflicts. (And I have most of them on my book shelf.) Dr. 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 [7], now a partner at Sidley & Austin, graduated from the
Harvard Law School and clerked for Judge Silberman on the U.S. Court of
Appeals for the D.C. Circuit and Associate Justice Kennedy on the United
States Supreme Court. He also served as Associate Counsel to President
George W. Bush from 2001 to 2003, a position in which he focused on the
relationship between the Congress and the Executive.
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 [8] of the Duke University School of Law
testified. Dellinger, the former head of the Office of Legal Counsel at the
Justice Department under President Clinton, and also acting Solicitor
General from 1996 to 1997 (during which time he argued nine cases before the
High Court) is a graduate of Yale Law School and a former law clerk for
Associate Justice Hugo Black
"In the absence of any congressional legislation on point," Dellinger said
in his prepared statement, "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?
In condensed form, with a few annotations, here is the text of the exchanges
that occurred. They require no commentary:
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." (Emphasis
added.)
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." (Emphasis added.)
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." (Emphasis added.)
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." (Emphasis added.)
* * *
In sum, as I read both the general statements of these experts, and their
specific answers to Senator Kennedy's question about Iran, everyone agrees
that Congress has the power to prevent a president from going to war.
The only question that is doubtful, then, is whether the members of Congress
actually have the will to do so. This, I suspect, is what James Fallows
concluded, when he said that, at best, they might draw a line.
Of course, George W. Bush and Richard B. Cheney know this too, so they will
do whatever they wish to do - and Congress may or may not catch up. But
there is no real question as to whether Congress could legally stop Bush and
Cheney from going to war in Iran without coming to Congress to fully explain
what they are doing and why. Congress has that power; the only question is
whether it will dare to use it.
_______
About author John W. Dean is a columnist for FindLaw and a former counsel to
the President.
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and incurring the horrors of a war and long oppressions of enormous public
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