Congressional leaders in both parties would do well to read closely the letter they received Wednesday from former U.S. Attorney General Ed Meese, law professors from the University of California at Berkeley, Pepperdine University, George Mason University and George Washington University, and constitutional law experts from respected law firms and nonprofits. Their message: The Iraq emergency supplemental funding bill expected to be considered today in the House is unconstitutional on its face.
The measure contains provisions that place limits on troop deployments in Iraq, establish detailed timetables and benchmarks for operations and require complex new training and equipment standards be met before individual soldiers, airmen and seamen are assigned missions. These provisions redefine and subvert the Constitution’s clear assignment to the president of the duties of the commander in chief, according to Meese and his fellow signers.
During the constitutional convention, they explain, “… the Framers changed the language of Art. I, sec. 8, cl. 11, in part to make clear that the president may ‘engage in war’ when necessary, whether Congress has declared one or not. Moreover, the power to make rules for ‘the government and regulation’ of military forces is the power to enact a general set of laws of military justice, analogous to the Articles of War enacted by the British Parliament. There is no convincing legalsupport that Congress may use this power to dictate operational commands.”
Further, it would be an egregious violation of the separation of powers doctrine if Congress usurps the president’s prerogatives as commander in chief. As the letter signers note: “The commander in chief power can no more be defined by Congress than the president can unilaterally define what the Congress’s spending power means (e.g., by issuing line item vetoes or impounding funds that are otherwise lawfully appropriated).” Put simply, the Constitution creates one commander in chief in the White House, not 535 armchair generals in Congress.
Here’s a two-step approach to fix the Iraq supplemental: First, congressional leaders should remove provisions regulating where, how and for how long U.S. troops can be deployed. If Congress wants to defund the war, that’s a different issue. Nobody questions that Congress has the constitutional right to do so if a majority so votes.
Second, lawmakers should strip out the $24 billion in pork barrel spending Democratic leaders are using to buy votes of wavering members and help special interests. Democrats regained the majority in Congress last November in great part because Republicans couldn’t control their appetite for earmarks and other pork-barrel spending. So why are Democrats now putting billions in the Iraq supplemental to help shrimp growers, peanut storage facility owners, commercial livestock operations and legions of other special interests with no connection to the war effort? If Democrats won’t cut the pork, who could blame voters for concluding there’s not a dime’s worth of difference between the two parties?
