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Sunday, November 04, 2007
George Will :: Townhall.com Columnist
A Leash on the Executive
by George Will
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With unemployment at 10.2%, what will happen by the end of Obama's first term?



WASHINGTON -- Americans are wondering, with the lassitude of uninvolved spectators, whether the president will initiate a war with Iran. Some Democratic presidential candidates worry, or purport to, that he might claim an authorization for war in a Senate resolution labeling an Iranian Revolutionary Guard unit a terrorist organization. Some Democratic representatives oppose the president's request for $88 million to equip B-2 stealth bombers to carry huge "bunker-buster" bombs, hoping to thereby impede a presidential decision to attack Iran's hardened nuclear facilities.

While legislators try to leash a president by tinkering with a weapon, a sufficient leash -- the Constitution -- is being ignored by them. They are derelict in their sworn duty to uphold it. Regarding the most momentous thing government does, make war, the constitutional system of checks and balances is broken.

Congress can, however, put the Constitution's bridle back on the presidency. Congress can end unfettered executive warmaking by deciding to. That might not require, but would be facilitated by, enacting the Constitutional War Powers Resolution. Introduced last week by Rep. Walter Jones, a North Carolina Republican, it technically amends, but essentially would supplant, the existing War Powers Resolution, which has been a nullity ever since it was passed in 1973 over President Nixon's veto.

Jones' measure is designed to ensure that deciding to go to war is, as the Founders insisted it be, a "collective judgment." It would prohibit presidents from initiating military actions except to repel or retaliate for sudden attacks on America or American troops abroad, or to protect and evacuate U.S. citizens abroad. It would provide for expedited judicial review to enforce compliance with the resolution, and permit the use of federal funds only for military actions taken in compliance with the resolution.

It reflects conclusions reached by the War Powers Initiative of the Constitution Project. That nonpartisan organization's 2005 study notes that Congress' appropriation power augments the requirement of advance authorization by Congress before the nation goes to war. It enables Congress to stop the use of force by cutting off its funding. That check is augmented by the Anti-Deficiency Act, which prohibits any expenditure or obligation of funds not appropriated by Congress, and by legislation that criminalizes violations of the act.

All this refutes Rudy Giuliani's recent suggestion that the president might have "the inherent authority to support the troops" even if funding were cut off. Besides, American history is replete with examples of Congress restraining executive warmaking. (See "Congress at War," a book by Charles A. Stevenson.) Congress has forbidden:

Sending draftees outside this hemisphere (1940-41); introduction of combat troops into Laos or Thailand (1969); reintroduction of troops into Cambodia (1970); combat operations in Southeast Asia (1973); military operations in Angola (1976); use of force in Lebanon other than for self-defense (1983); military activities in Nicaragua (1980s). In 1993 and 1994, Congress mandated the withdrawal of troops from Somalia, and forbade military actions in Rwanda.

When Congress authorized the president "to use all necessary and appropriate force" against those complicit in 9/11, Congress refused to adopt administration language authorizing force "to deter and pre-empt any future" terrorism or aggression. The wonder is that the administration bothered to seek this language.

The administration's "presidentialists" -- including the president -- believe presidents are constitutionally emancipated from all restraints regarding core executive functions, particularly those concerning defense and waging war. Clearly they think the rejected language would have added nothing to the president's inherent powers.

Congress' powers were most dramatically abandoned and ignored regarding Korea. Although President Truman came from a Congress controlled by his party and friends, he never sought congressional authorization to send troops into massive and sustained conflict. Instead, he asserted broad authority to "execute" treaties such as the U.N. Charter.

For today's Democrats, resistance to unilateral presidential warmaking reflects not principled constitutionalism but petulance about the current president. Democrats were supine when President Clinton launched a sustained air war against Serbia without congressional authorization. Instead, he cited NATO's authorization -- as though that were an adequate substitute for the collective judgment that the Constitution mandates. Republicans, supposed defenders of limited government, actually are enablers of an unlimited presidency. Their belief in strict construction of the Constitution evaporates and they become, in behavior if not in thought, adherents of the woolly idea of a "living Constitution." They endorse, by their passivity, the idea that new threats justify ignoring the Framers' text and logic about shared responsibility for warmaking.

Unless and until Congress stops prattling about presidential "usurpation" of power and asserts its own, it will remain derelict regarding its duty of mutual participation in warmaking. And it will merit its current marginalization.

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About The Author
George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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Silicondoc writes: 05, 2007 6:39 PM


But this concerns the powers of war, not something else. You appeared to claim they have violated the above. So, of course it required a response. Now claiming something else like the LIV doesn't count.

DESKJOCKEY WRITES

Sorry for long delay. I never claimed he violated the above but acknowledged that congress passed a bill that granted him the right to take such action when and if he so desires on the war on terror.

The delegation doctrine is not limited to LIV, but just a current example of court’s position and solution.

That the court has dealt with a large number of the presidents assumption of war powers and rejected them.

If war making gets to the court they will merely tell congress to try to pass the bill again, if they can to remove such power.

For your info I don’t vote for left wing extremist so I didn’t vote for him either time. As Joe Sobran said, Bush’s legacy will be that he gave Clinton the legacy as being a conservative.

Silicondoc writes:, 04, 2007 7:48 PM

Desk, “The SC has already dealt with this concept and no branch can “shirk” their responsibility or peddle it off to another branch for the obvious reason that our founders purposely weighted the power of the three branches.”

Yes, but the Congress has assigned and vested their authority as the Constitution declares they may. So your point is moot, and the SCOTUS, as pointed out by others, has kept far from what you claim in this area.

DESKJOCKEY WRITES

I think we may be discussing apples and oranges probably due to my using your “shirk” when I was trying to point out that to maintain balance they can not peddle off enumerated powers. Under the concept of delegation doctrine, congress can delegate broadly to the executive branch but they can’t abdicate lawmaking, impeachment, declaration of war, taxing etc. In Clinton v NY the delegation of the line item veto was rejected because it violated enumerated terms of presentment of legislation to the president. Congress could not delegate that away.

However in the war on terror they delegated broad powers to the president, but can not delegate away the enumerated powers to declare war, such that all future wars need no congress. Looking at I.N.S. v. Chadha the court said if congress does delegate broadly to the president and they don’t like it later then they need to pass another law or live with what they delegated.

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