David Rivkin & Lee Casey: The president and Congress in wartime





[Messrs. Rivkin and Casey served in the Justice Department under Ronald Reagan and George H.W. Bush.]

... Fundamental disagreements between the president and Congress over strategic decisions are not unique to this war and have occurred in the past; doubtless many congressmen believed that Lincoln's early determination to destroy Lee's army in Virginia was counterproductive when more could be gained along the Mississippi River in the West, just as some congressional Republicans felt that Roosevelt was overinvesting in the European theater during World War II while "starving" the Pacific theater, where, to borrow today's favorite Democratic mantra, the enemy that actually attacked this country resided. There also have been efforts to direct presidential wartime decision making, and at least one instance -- after the major U.S. involvement in the Vietnam War had ended -- where Congress sought to establish particular troop levels. However, this occurred late in the conflict, and its constitutionality was never accepted by the executive branch.

There are nevertheless clear limits to the president's power as commander in chief. In Fleming, the court noted, "He [the president] may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power."

Similarly, the president cannot take over control of the nation's economy on the pretext that this is necessary to the successful prosecution of a war. That is the clear teaching of the Supreme Court's decision in Youngstown Sheet & Tube v. Sawyer (1952), which declared unconstitutional Truman's seizure of U.S. steel mills (on account of a strike) during the Korean War. In this respect, Congress's paramount authority to regulate foreign and domestic commercial activity, including labor relations and capital markets, remains undiminished in wartime.

Thus Congress could cripple the president's ability to fight a war (accepting the political consequences), but it cannot supervise his own constitutional authority as commander in chief, effectively transferring those functions to Congress. This balancing exercise, rooted in the Framers' political philosophy and appreciation for the Newtonian physics of motion and countermotion, permeates our constitutional system. For example, the president plays a critical part in the legislative process, by proposing legislation, having executive branch officials testify in hearings, negotiating with members of Congress and, ultimately, by exercising his veto power. But Congress retains the primary legislative role.

When Congress augmented executive power in the 1990s with a "line item veto," the Supreme Court struck down the measure: Allowing the president to void particular portions in an overall spending bill, it said, would upset the Constitution's "finely wrought and exhaustively considered" legislative procedure.

The district court, which first invalidated the scheme, went further by noting that "[b]y ceding inherently legislative authority to the President, the Line Item Veto Act violates [the] constitutional framework." Permitting Congress to direct the war in Iraq would similarly warp our constitutional framework.

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