Constitutional Powers Go Three Ways, Mr. President

John Murtha, responding to the president’s stated intention to veto the new spending bill, posted a hum-dinger in the Huffington Post today.  We’ve been getting hit over the head repeatedly about the president’s supposedly vast and irrefutable “Constitutional Powers.”  Well, Jack reminds us all that the Congress has powers which it must exercise as well:

The Blog | Rep. John Murtha: My Response to the President’s Veto Threat | The Huffington Post

The Constitution expressly places the power ‘to raise and support Armies,’ and ‘to provide and maintain a Navy’ with Congress. It is, therefore, Congress’ responsibility to raise the revenues for our military and to determine in what manner and by what means they shall be spent.

For four years, the president has been waging a war without end and without accountability. The Iraq Accountability Act expresses the sentiment of the Congress and the majority of the American people who say it’s time for a plan to safely and responsibly end the war.

It’s actually an interesting legal question.  If the job of the Congress is to “raise and support” an Army and to maintain the Navy, then certainly they have the obligation to pass such laws as will restrain the president when he’s in danger of over-extending and irreparably damaging that military they are bound to maintain.

But while I support Congressman Murtha’s effort in this instance, it bears mentioning that all wars require such a risk.  If they didn’t, no one would ever lose.  So effectively Murtha is stating that the Congress does, to a great extent, have a role to play in fighting any war.  Maybe not to the extent of a battle-by-battle, movement-by-movement management, but clearly, he is arguing for considerably more active involvement by Congress than the president seems to think is appropriate.

So, the question is: how has this been interpreted by Congresses and presidents past?  I should think that most of the Constitutional War Powers interpretation issues would have been sorted out for the most part during the Civil War, but in fact there are a great many precedents.  However, a great review of the Constitutional falacies (or phallacies, if you prefer) can be found at in it’s “Top 10 War-Powers Myths”:

Top 10 War-Powers Myths

8. “In the exercise of his plenary power to use military force, the president’s decisions are for him alone and are unreviewable.”

This often-quoted statement is from a memorandum written by John Yoo, an attorney who worked in the Justice Department during George W. Bush’s first term. It implies that the Constitution grants the president absolute powers to conduct war; in fact, the Constitution assigns most war powers to the legislature. Article II makes the president commander in chief of the military. Specific war-making powers are delineated in Article I, which grants Congress these powers:

* To define and punish piracies and felonies committed on the high seas and offenses against the law of nations;

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

* To raise and support armies; however, 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;

* To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; and

* To provide for organizing, arming and disciplining the militia; and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress[.]

By the way, John Yoo’s a dick.  There, I said it.

It’s clear that Congress creates the Army, it’s clear they fund the Army, it’s clear also they are supposed to approve going to war.  What is less clear is what the Congress’ role is in declaring withdrawal or even defeat (despite the screeching of The Right, it is not clear that either term is applicable in this case). 

Certainly in the days of the Founding Fathers, such a thing wouldn’t have been much of a consideration, since battles and wars were typically ended by the destruction of the army.  But in these days and with such a vast Army, a single-battle destruction is simply not possible for the US Army.  We are, in some ways, in virgin territory, here.

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By Tommy Belknap

Owner, developer, editor of DragonFlyEye.Net, Tom Belknap is also a freelance journalist for The 585 lifestyle magazine. He lives in the Rochester area with his wife and son.