On the Iraq War, Congress, and the U.S. Constitution

by Jay Stevens

I admit I’ve enjoyed the back-and-forth with rightie blogger Montana Headlines. It’s good to have a quality foil in the Montana blogosphere, it keeps me on my toes.

The latest MH post was in response to my savaging of Barack Obama over his statements on Iraq War funding. (In which I do now admit I was a little over-heated. I like Obama.) In MH’s post, he questions whether Congress can Constitutionally deny funds to the Iraq War, and opines that Obama’s stance may, in fact, be the most politically astute:

Unless Congress is also prepared to pass a resolution that specifically de-authorizes the war, it is asking for a Constitutional crisis to have Congress merely defund the war. Any attached instructions for military commanders also are asking for a Constitutional crisis.

Consider: Congress has the constitutional authority and responsibility to declare war (and, as we have stated before, presumably to undeclare war), and it is tasked with raising funds to support the military. It was probably never contemplated by the Founders that the two might not go clearly hand-in-hand with each other.

Congress needs formally to “undeclare war” if it wants to make a defunding iron-clad….


[The President] can furthermore justifiably claim that the Constitution gives no authority to Congress to dictate how a military action is to be conducted. The Supreme Court is unlikely to come up with an emanation from a penumbra saying that Congress has somehow developed constitutional military command authority.

Man, I love me a good ole fashioned Constitutional debate!

So let us traipse over to Article I, Section 8 of the U.S. Constitution:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States…


To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces…

It seems clear that the Constitution gives Congress the power to set the scope of military action. With the original Iraqi War Resolution, Congress gave the President the authority to use force, if necessary, against the present danger of Iraq. (While I happen to think this Resolution void because of the manufacturing of danger by the administration, Congress does not.) A clear way to end the Iraq War, then, would be to pass a new resolution.

But this section also gives Congress the power to fund the military as it sees fit. Nowhere does the document state that Congress must fund the military to the President’s desires, nor does it deny Congress the authority to allocate the money where it sees fit. In fact, it seems clear that Congress’ control over funding is intended to serve as a check on the executive’s power to wage war.

Don’t believe me? You shouldn’t: I’m just some schmuck with a computer. But here’s what Alexander Hamilton had to say about Congress’ power to raise funds for the military in Federalist paper 24:

….in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

Clearly Hamilton here sees Congressional control over funding a necessary check on the executive’s desire to build up an army or keep one in the field longer than necessary, as defined by Congress.

Then there’s Federalist paper 26:

The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.

Got that? Congress isn’t allowed to abrogate this authority to the executive. It’s not only acceptable to consider limiting funds for the military, such consideration is Constitutionally mandated.

Given that Congress can both dictate the scope and form of war and controls the funding of war, it seems clear that the recent Iraq War funding bill is constitutional. Congress can dictate to the President exactly how long he has to wage war in Iraq. Or, more specifically, the operations are up to the President; the goals and scope of the war is up to Congress.

  1. Got that? Congress isn’t allowed to abrogate this authority to the executive. It’s not only acceptable to consider limiting funds for the military, such consideration is Constitutionally mandated.

    I don’t think you’d believe how very hard I’ve tried to convince some people that the use of force resolution was borderline Constitutional (at best), and that we should be furious at Congress for abrogating it’s power to the Exec. Even those who despise GW (more than me even) have a hard time understanding that the failure of our government lays as much with Congress as it does with the Administration’s incompetence. More than any other, I consider that act to be an unpardonable sin, one for which I hope Baucus pays the price, as well as Sen. Clinton and John Edwards.

  2. Yosemite1967

    Beautiful, Jay. Just beautiful!

    George Bush, and every other president who has essentially taken it upon himself to declare war, instead of letting congress do it, is a tyrant and a usurper! Thank you for spreading the word.

    Now, it’s congress’ responsibility to reign in tyrannical presidents. Oh, if they only had the spine to impeach him!

  3. March Duke

    Too bad for your argument that the Federalist Papers are not law. What you need to do is—um—make your case by citing a US Supreme Court decision on the war power. Or you could do a reductio ad absurdum and ask yourself what would happen if the Congress declared war on, say, Tahiti, and the Commander in Chief refused to send the troops.

    Good luck, “schmuck with a computer”!

  4. Why worry about Supreme Court decisions? Isn’t this exactly how a Republican’t congress got Slick Willy out of Bosnia? Cut off the bucks = no more war. What’s good for the goose is good for the gander methinks. Now if they could’ve just kept him out of Monica . . . . . ;)

  5. I like the resort to the Federalist papers. When you’re dealing with someone who fetishizes the “Founders” (since when did that become a title, worthy of capitalization?), there’s no better way to smack him around than stepping into his position and exposing the flaws in it.

    In general, Bushies–increasingly not conservative in any traditional sense–love to resort to historical intent for their arguments. Part of the impulse is just reactionary: if you’re based ideas tied to social conditions that were in existence a couple hundred years ago you’re bound to find support for a less emancipatory set of social conditions than exist today. But mostly the impulse is just silly, as though we have to be governed by the intent of those people as though itself were law. Certainly, their intent can illuminate our own understanding of why structures of government were set up in a certain way and their judgment might be a guide to our own use of those structures. In this way also, Jay I think you did a terrific job speaking to Congress’s proper role.

    Of course, the law speaks to a debate about the existence of any armed forces, hardly something that’s debatable these days and an indication of how far our country has moved from its humbler origins. Hegemony demands something more than humility to be sure; generally, it demands a hegemon. I guess a Decider will do in a pinch though.

  6. Man, it’s amazing that even quotes from Alexander freakin’ Hamilton can be used to argue against GW’s expansion of executive power. Hamilton was the most conservative of all the founders when it came to such things (by a long shot). But not as Conservative as the folks we have in power, I guess.

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