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January 25, 2007
Surge protection
On January 10, President Bush announced plans to send a “surge” of 21,500 additional troops to Iraq. By most accounts, this was a bold move on his part. In November, the Democrats won control of Congress due largely to the growing unpopularity of the Iraq war. In December, the bipartisan Iraq Study Group issued its report, which broadly called for a withdrawal of U.S. forces from Iraq and expanded diplomatic efforts in the region. It was in such a context that opposition to the president's “surge” emanated from Congress, from Democrats and Republicans alike. But so far, this opposition has only been rhetorical. Many questions remain regarding Congress' ability and intent to force a change in the president's new Iraq plan. But one thing is clear: despite the intensity demonstrated over the past year, congressional opposition to the Iraq war has yet to peak.
Since the opening of the Democratic-controlled Congress on January 4, a plethora of proposals to counter the president's “surge” have been introduced or announced. Senators Joe Biden (D-DE), Chuck Hagel (R-NE), and Carl Levin (D-MI) introduced a non-binding resolution that would express disapproval of the president's plan. Senator Edward Kennedy (D-MA) and Congressman Ed Markey (D-MA) introduced similar bills that will prohibit the president from sending additional troops to Iraq or spending additional money on such a plan without congressional approval. Senators Christopher Dodd (D-CT) and Hilary Clinton (D-NY)—both contenders for the Democratic presidential nomination—have each offered proposals that would cap the total number of U.S. troops in Iraq. Congresswomen Barbara Lee (D-CA), Maxine Waters (D-CA) and Lynn Woolsey (D-CA) introduced legislation that would establish a 6-month timeframe for withdrawal for all U.S. military forces from Iraq.
Senators and congressmen who wish to register their opposition to the Iraq war, then, clearly have a wide menu of legislative options to choose from. And given the current national mood, it is likely that at least one option will pass both houses of Congress. But congressional passage is just a single measure of success, and it is by no means the ultimate one. Consider the resolution sponsored by Biden, Levin, and Hagel. As a concurrent resolution, it will require only simple majorities in each chamber of Congress to pass, and it will not be submitted to the president for his signature. As such, it will not have the force of law—hence its description as “non-binding.” For those wishing to send a loud message of opposition to the president, this could be a good thing. Legislators who disapprove of the course of the Iraq war but are reluctant to restrain the president's freedom of action (Republicans, mostly) could readily support this resolution.
But the resolution's sponsors have attempted to make the case that their proposal is not merely a symbolic one. Biden has indicated that the resolution is akin to a vote of no confidence, and that, “if this were a parliamentary system … it would bring the government down.” This is, in part, political posturing—Biden recently announced his own presidential intentions. But his comments also raise an important constitutional issue. In parliamentary systems of government, both executive and legislative functions are performed by the legislative body, or parliament. If the opposition party passes a no confidence measure, the executive falls and new elections are held. In the presidential system of the United States, however, executive and legislative functions are explicitly separate; short of impeachment in the Senate and prosecution in the House, Congress cannot remove the president from office. For some time, Congress attempted to exercise a “legislative veto,” whereby majorities in both houses of Congress could override or reject actions by the executive. But in INS v. Chadha (1983), the Supreme Court ruled that legislative vetoes violated the constitutional principle of separation of powers. Accordingly, Bush would be fully within his constitutional rights to ignore Biden's concurrent resolution.
Those proposals that would actually constrain the president's actions pose challenges of their own. Putting aside the constitutional questions as to whether Congress can actually cap troop levels in Iraq, cut off funding for additional troops, or mandate the withdrawal of those forces already there, the president is unlikely to sign any such bill emanating from the legislature. Any proposal along these lines, then, would most likely be attached as an amendment to a separate measure, one that is consequential and would otherwise garner wide support, such as an appropriations bill. Assuming the amended bill passes both houses of Congress, the president will be forced to make a difficult decision. But given his past determination on Iraq, it seems likely that the president would veto any bill—no matter how important its non-Iraq elements—that constrained his freedom of action in pursuing the war. And although the mood of Congress has turned clearly against the Iraq war, it is doubtful that a veto-proof, two-thirds majority in either chamber would vote for a binding measure against the president.
A third alternative exists that blends the potential risks and rewards of the various binding and non-binding legislative options. In passing the original Authorization for Use of Military Force Against Iraq (AUMF) in October 2002, Congress declared that the measure fulfilled the requirements outlined in the War Powers Resolution (for more, see Capitol Watch, August 2006). The AUMF cited Iraq's purported weapons of mass destruction and links to the 9/11 attacks as justification for military action. Clearly, the U.S. military purpose in Iraq is very different today. To reflect this changed mission, Senator John Warner (R-VA) suggested a different course of action by Congress last summer: “I think we have to examine very carefully what Congress authorized the president to do in the context of the situation if we are faced with an all-out civil war. And whether [we] have to come back to Congress to get further indication of support.”
Warner has not publicly reiterated this sentiment, opting instead to co-sponsor a non-binding resolution similar in content but less strident in tone to the one proposed by Biden et al. But the War Powers Resolution nonetheless remains a valuable tool in Congress's arsenal. Although every president since Nixon has denied its constitutionality, each one has abided by its requirements, and it has not yet been challenged in the judiciary. Instead of bothering with non-binding and symbolic measures, or with indirect and improbable methods for changing war policy, Congress could address the issue head-on by using its ability under the War Powers Resolution to re-evaluate and re-authorize the Iraq war. Such a direct and unambiguous action would surely be opposed by the Bush administration, on both substantive and constitutional grounds, but it would be far more difficult to ignore out-of-hand than some of the other proposals that have been floated. Already, there are early indications that Senator Robert Byrd (D-WV) may pursue such a course, as well as Biden himself: “I've drafted … I'm not going to introduce it right now … an authorization for the use of force that renders the last one null and void.”
Regardless of the success of Bush's “surge” policy and of congressional efforts to thwart it, the national mood on the Iraq war clearly has changed. By last summer, the war already had become widely unpopular; antiwar candidates such as Ned Lamont were able to defeat pro-war incumbents like Joe Lieberman (I-CT) in their party primaries. But in the few brief months since, the popularity of the Iraq war has sunk even lower. What were once hypothetical, long shot ideas to impede the president's prosecution of the war have become realistic and widely supported proposals. On Iraq, the question now is not whether Congress will assert itself. It's how far it is willing to go.
Foreign Policy Association, 25 January 2007
Posted by Daniel Widome at 10:30 PM to Middle East,
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