House Speaker Nancy Pelosi's comments raise a point worth
making. It is that, in the last analysis, there is no way for
Congress to estop military escalation by the executive except by
cutting funds. Or impeaching the president.
Some speak of alternative measures -- specifically, a
"nonbinding" resolution that would express the will of Congress
in the matter of financing an additional 20,000 troops, but would
stop short of declaring the expenditure of federal money for that
purpose an illegal act.
Some legislators are aware that Congress is flirting with a
constitutional problem of its own. It has the authority to raise
and dispose of funds. But the president exercises authority as
commander in chief. Professor Walter Dellinger, who was President
Clinton's chief constitutional authority, put it well when he
wrote that "broad as Congress' spending power undoubtedly is, it
is clear that Congress may not deploy it to accomplish
unconstitutional ends" -- such as restricting the president's
authority as commander in chief to direct the movement of
American troops.
Dellinger quoted FDR's attorney general, Robert Jackson, who
later served as a Supreme Court Justice: "The president's
responsibility as commander in chief embraces the authority to
command and direct the armed forces in their immediate movements
and operations, designed to protect the security and effectuate
the defense of the United States."
It is simply preposterous to assume that Congress is going to
specify a single escalation of troop levels in Iraq as
transgressing against congressional authority.
Sen. Christopher Dodd, D-Conn., has an interesting suggestion
on how to avoid the dilemma. He would back a resolution declaring
that additional troops could not be sent into that theater except
with the sanction of Congress. It becomes a sophisticated
question whether Congress can simultaneously abide by the
separation of powers and intrude into military operations the
commander in chief deems necessary to the exercise of his
duties.
The vice president's office, meanwhile, has said that there is
already in the executive kitty enough money to finance the
proposed augmentation of troops. Once again we get into disputes
extremely difficult to adjudicate. It is unlikely that any
constitutional force in the imagination of any congressman is
going to interfere with the deployment of five brigades in the
midst of a lengthy military venture.