It's legal for Congress to manage the war

[struggle4progress]

By Emily Bazelon
Updated Monday, March 5, 2007, at 5:44 PM ET

... Harvard law professor David Barron, in testimony before Congress in January, pointed to examples of assertions of congressional power during war that have stood the test of history. In 1798, when the United States was fighting with France, Congress barred American ships from sailing to French ports. President John Adams issued a broader order, barring all traffic between American and French or French-controlled ports. In Little v. Barreme, decided in 1804, the Supreme Court refused to side with a naval officer who invoked Adams' order when he was sued for seizing a ship leaving from a French port in the West Indies. Congress' order, not the president's, controlled. During the Civil War, Barron noted, Lincoln complied with congressional statutes that "intruded far more deeply into tactical judgments than those now being contemplated." The Confiscation Acts told Lincoln to instruct Union soldiers to seize enemy property in the middle of battle, even though Lincoln thought it was better strategy for them not to ...

Then there is the law that Congress passed in June 1973 barring the expenditure of funds for military actions in Cambodia, Laos, and Vietnam, as of Aug. 15 of that year. It's true that this isn't the strongest example of congressional muscle flexing, since it came at the very end of the war. But it looks a lot like setting a deadline for troop withdrawal, à la Obama.

Barron also pointed out that at the time, future Chief Justice William Rehnquist reviewed Congress' action as an assistant attorney general for the Nixon administration—and endorsed it. Rehnquist noted that there would be an "exacerbated" separation-of-powers problem if Congress issued "detailed instructions as to the use of American forces already in the field." But Rehnquist also acknowledged that "Congress undoubtedly has the power in certain situations to restrict the President's power as Commander-in-Chief to a narrower scope than it would have had in the absence of legislation." For support, he brought up Little v. Barreme. President Adams' order "would have been valid" had Congress not legislated otherwise, Rehnquist wrote. But Congress did, and that's why the president lost ...

http://www.slate.com/id/2161259/

[bemildred]

1. Congress can do whatever it wants to (subject to the Constitution).

It is the representative of the people, and the people are the source of all legitimacy in government. And the Constitution says it holds the war power entirely, and that it can impeach a President (or a pResident) for any reason it finds sufficient (like a blow-job). That would seem to be sufficient.

[Demeter]

2. Whereas Bush Does What He Wants, Regardless of the Constitution?

Impeach, Indict, Convict, Deport to the Hague!

[bemildred]

3. Bush does what Congress has allowed him to do.

And the Clowns on the USSC. His intrinsic power is not much.

[twiceshy]

4. It may be legal...

But it's still a bad idea. Managing anything by committee, especially as fluid and dangerous as a war is a recipe for disaster. Impeach and bring in a new executive, but don't abandon the necessity of a central CIC in charge.

[bemildred]

5. WWII was run by committees, lots of them.

Giant bureaucracies and management by consensus all over the place. Read Winston Churchill's self-serving history of WWII and see how ignorant you are about these things. The only place you get autocratic power is at the tactical command level, and Bush doesn't know anything about that sort of thing, nor would he go anywhere near real combat.

It is the Presidents JOB to convince Congress to support his policies, and if Bush is not up to that job, that is his failure, not the Congress'.

[struggle4progress]

7. The Constitution puts the war-making and war-funding authority in the hands of Congress

And in case you have not noticed it recently, it also specifies that no military expenditure can be enacted for a period of more than two years.

That was the result of a lengthy debate at the Constitutional Convention, which involved much concern about a permanent military establishment in the hands of a powerful executive: the point is that Congress not only can Congress impose conditions on funding, Congress is entitled to cut off funding.

I'm really not sure why you think this a bad idea. Dictatorships often collapse due to incompetence. Simply put, nobody is all that smart. America has survived so far because the multiple and overlapping controls usually favor those who "play well with others." The unwillingness of the Bush Administration to "play well with others" is perhaps the one most obvious factor in their choice of an idiotic and pointless war, their inability to protect Gulf Coast residents in the aftermath of Katrina, and in their failure to maintain a viable VA system.

[twiceshy]

8. Not saying one man should make all the decisions....

But there has to be a CIC. Just because Bush is a failure doesn't mean having an ultimate decision maker/final arbitrator at the top is a bad thing. And I'm only talking about war making authority here.

[struggle4progress]

9. The Constitution does not make the Executive a "final arbitrator".

[MasonJar]

6. As has already been proved by the last Congress led by Pugs,

letting this president, who doesn't read and has no curiosity about much of anything and no empathy for anyone outside himself, lead anything (he can't even get his poor dog off a plane without dropping him) is detrimental to the health of our democracy.