Roguely Stated

By: David Bibo

The President and Congressional leaders spent last week arguing over parameters for the next round of Iraq-war-funding legislation, culminating in Bush exercising his veto power. Now, Senator and presidential candidate Hillary Clinton, along with Senate President pro tem Robert Byrd, are calling for a repeal of the 2002 Iraq Authorization for the Use of Military Force. What would this mean for the President’s ability to continue using force in the face of Congressional pushback?

The 2002 Iraq AUMF authorizes the President “…to use the armed forces as he determines to be necessary and appropriate in order to…defend the national security of the United States against the continuing threat posed by Iraq…” Congressional leaders may contend that the authorizers never envisaged US military forces quelling a civil war between Shiite and Sunni Muslims. The genie, however, is out of the bottle: the language in the Iraq AUMF is so expansive that arguing a “continuing threat” probably won’t be a heavy lift for the Bush administration, especially if they are hell-bent on seeing through the surge and leaving office without having retreated.

Americans elected George W. Bush to a second term despite profound ambivalence regarding the war in Iraq. But voters spoke loud and clear in November’s mid-term elections: the Democrat win was a ringing rebuke of the President’s Iraq policy. Notwithstanding that reality, the administration pursued a highly unpopular surge strategy, sending more troops to the theater instead of scaling back. If the American people couldn’t reign in the President’s Iraq policy, who can?

Historically, the courts avoid deciding cases that might limit the President’s ability to conduct foreign affairs. Presidential authority tends to expand in time of war and Congressional attempts to limit it tend to fail. Since the Supreme Court’s 1936 decision in the Curtiss-Wright export case, Presidential power over foreign affairs has been virtually indomitable. The Curtiss-Wright court affirmed the President as the “sole organ of the federal government in…international relations…”

In the 1952 Steel Seizure Case, Justice Jackson laid out a continuum for evaluating Presidential power. Presidential power is at its zenith, Jackson opined, “When the President acts pursuant to an express or implied authorization of Congress…” This was arguably the situation before the Congress passed the latest war funding legislation. At the other end of the continuum, Jackson wrote, is the circumstance under which “…the President takes measures incompatible with the expressed or implied will of Congress…” This is the point at which “…his power is at its lowest ebb…” We seem to have reached this point.

In light of Bush’s power arguably being at its lowest ebb, what can the Congress do to impose its will on the executive? With the Iraq AUMF’s expansive language, an argument that the President has exceeded his authority will be difficult to sustain. What’s more, even more expansive language exists in the AUMF Congress passed in direct response to the 9/11 attacks. The 9/11 AUMF doesn’t name an enemy like the Iraq AUMF, it describes an enemy and leaves to Presidential determination what “nations, organizations, or persons” meet the characteristics. The language is so favorable to the executive that Harvard Law scholar Jack Goldsmith, himself a former Bush administration attorney, has suggested that the President’s determination of enemies under the 9/11 AUMF may be “unreviewable” by courts. Congress’ only recourse then, would seem to be what Clinton/Byrd are now advocating: one or both houses repealing one or both AUMFs altogether.

Precedent in such a situation is still on the President’s side. Congress repealed the Vietnam War authorization and a federal court held that their continued approval of the draft and war appropriations constituted their assent of continued use of military force. In response to this ruling, Congress was left with no choice but to put a tight enough box around appropriations that the troops had to be brought home. Even if Clinton and Byrd could gain enough support to repeal the AUMFs, it is unlikely they could attain veto-proof majorities on such a repeal. Moreover, we’ve already seen that they don’t have the numbers to override a presidential veto.

Congress may be losing comfort with the force it duly authorized, yet there isn’t clarity on how to reel it in. With the Court’s historic reluctance to intervene, the only viable check rests with the Congress yet it’s unclear if Clinton is engaging in political posturing or is actually planning to go to the mat to repeal the Iraq AUMF. As Justice Jackson wrote in the Steel Seizure case, “only Congress itself can prevent power from slipping through its fingers…”

[NPR] Clinton, Byrd call for revoking war authority
[NYT] Democrats’ Proposals Complicate Deal on Iraq Bill
[WaPo] Analysis: Clinton Tries to Rectify Past
[Reuters] White House, Democrats differ on Sen. Clinton’s war move