Just Above Sunset
Volume 5, Number 10
March 11, 2007

Theory and Practice

 The world as seen from Just Above Sunset -

"Notes on how things seem from out here in Hollywood..."

What Can and Cannot Be Done

Your government in action - what the Republican Congress couldn't accomplish in five years, the Democratic Congress took care of in the first one hundred hours, just as they said they would, as in this from Tuesday, January 9, House Easily Passes Anti-Terror Bill -

    Anti-terror legislation sailed through the House on Tuesday, the first in a string of measures designed to fulfill campaign promises made by Democrats last fall.

    Patterned on recommendations of the commission that investigated the Sept. 11 attacks, the far-reaching measure includes commitments for inspection of all cargo carried aboard passenger aircraft and on ships bound for the United States.

    The vote was a bipartisan 299-128

Of course it wasn't all sweetness and light - "Several Republicans criticized the legislation as little more than political posturing in the early hours of a new Democratic-controlled Congress."

That's amusing, as in the run-up to the mid-term elections there was all that effort to get the next amendment to the constitution underway - to ban flag-burning as a form of protest that was an unacceptable form of free speech - and to also get the other next amendment to the constitution underway - a federal redefinition of marriage that would exclude gay marriage. And we were told that allowing Lars and Bruce down the street the same rights and benefits as others of opposite sexes was the biggest threat to America we'd ever faced.  And there was the effort to make sure that, by federal law, "under God" stayed in the Pledge of Allegiance mumbled by school children - where it had always been, since 1954.  It seems the two parties have different views of what is and is not "political posturing."

Congressman Hal Rogers, a Republican from Kentucky, offered - "This bill will waste billions of dollars, and possibly harm homeland security by gumming up progress already underway."

What's underway in terms of homeland security, besides tapping our phones in violation of specific laws regarding that, and in violation of what's in the Constitution specifying what "search and seizure" requires? A bit of torturing people who've had no trial and suspending habeas corpus is underway, and we do have to take off our shoes at the airport, and put liquids and gels in clear little baggies. Things are "gummed up" as it is. And as for wasting money, the fellow's political party is conducting an extraordinarily expensive war completely off the books. But Congressman Rogers had to say something of course. Passing the bills didn't seem fair somehow.

Congressman John Mica, a Republican from Florida, was really upset that screeners at the Transportation Security Agency would receive collective bargaining rights under the bill.  Why should they get to bargain about decent wages and working conditions?  The next thing you know there could very well be police and firefighter unions, and the country would be left to chaos and conflagration as those people blackmailed us all for a few more dollars, out on strike as our women are raped and our homes burn.  No, wait. Police and firefighters already have unions. Oops.

Congressman Peter King, the Republican from New York, said the legislation that was passed "gives false hope to the American people" because technology for scanning all cargo containers is not yet available.

False Hope?  As for technology not yet ready for prime time, just when will that multi-billion dollar missile defense system actually pass just one real test? And what about that "Mission Accomplished" banner way back when?  There were all those "turning points" - so and so is captured, so and so is killed, this election or that, last summer's "Adapt to Win!"  Each of those, we were told, would wrap up the Iraq War with a nice bow.  And now we get the vaguely Maoist sounding "A New Way Forward!"  Peter King's side should not be taken too seriously regarding false hope.  It wasn't a cakewalk, and there were no sweets and flowers. Lots of things, it seems, are "not yet available." Give it a rest.

So the congress actually did something, something that now awaits a presidential veto.

Ah, but will the new congress do something about the war, or at least about the escalation?

Consider the motives behind the escalation -

    Dubya isn't insane (at least not entirely) - he (or Cheney or Rove, or whoever) is making a calculated gamble that the long-term benefit of sticking with the "resolve" narrative will overcome the short-term unpopularity of escalating the war… and that whatever fuss they might raise, Democrats won't be able to make them pay a permanent price for it.

    So the absence of an effective Democratic narrative isn't just an abstract issue. At this point, it's actually enabling the Bushites to lengthen the war.

And in the Tuesday, January 9, New York Times -

    The president's advisers are also mindful of polls showing that while the public wants the situation to improve in Iraq, it does not necessarily favor immediate withdrawal.

    "They're going to cast it as a choice between withdrawal and surge," said one Republican strategist close to the White House. "The public is not for immediate withdrawal or even a quick withdrawal, but they're not for the status quo. I think they feel as if the public is more likely to support the president's position, which is putting a stake in the ground in Iraq and saying were going to try to win."

    Finding better Democratic framing on Iraq isn't an excuse for not stopping the war; it's how to stop the war.

That's the usual somewhat clever framing - it comes down to those who "want to win" and those who want to admit defeat.

But there's a way to deal with it -

    Finding better Democratic framing on Iraq isn't an excuse for not stopping the war; it's how to stop the war.

    If we can change the argument to one between people who want to face reality and those who want to cling to fantasies, thereby making a bad situation worse ("One more gallon of gasoline, and I'll have this fire out in no time!"), then the political cost will grow enough that Dubya will have to give in - or, at least, the public will stand behind the Democrats who take his toys away, instead of feeling guilty about it.

That may not be possible - invoking reality and raising the political cost - as it has hardly worked to this point. But Senator Kennedy gives it a go, quoting General Abizaid, General Casey, and Colin Powell saying that the "see and raise by twenty thousand troops" won't work -

    Such an escalation would be a policy of desperation built on denial and fantasy.

    … For the sake of our men and women in uniform in Iraq, the President should have heeded these generals, not discarded them and gone shopping for advice that matches his own wishful, flawed thinking.

    … In everybody's reality except the Administration's, Iraq is now in the middle of a civil war.

    … The President may deny the plain truth. But the truth speaks loudly and tragically. Congress must no longer follow him deeper into the quagmire in Iraq.

So Kennedy offers a bill that denies funds for escalation, unless the president can explain, to the satisfaction of congress, that he has a clear mission for these folks, with the reasons the mission can succeed - you know, the reality part.

Not that it matters, as while Kennedy spoke -

    A first wave of additional U.S. troops will go into Iraq before the end of the month under President Bush's new plan, a senior defense official said Tuesday.

    Up to 20,000 troops will be put on alert and be prepared to deploy under the president's plan, but the increase in forces on the ground will be gradual, said the official, who requested anonymity because the plans have not yet been announced.

The man's two brothers were assassinated, but Ted is just irrelevant.

And in theory, what can congress really do?

It's complicated, as Josh Marshall explains -

    ... one thing is clear. And that is that official Washington - or a lot of it - doesn't get that democracy matters. The constitution gives the president great power and latitude in the exercise of his war powers. But not exclusive power. The president is not a king. Anybody who knows anything about the US constitution knows that it was designed specifically so that the president's need to get the Congress to finance his wars would be an effective brake on the vast power he holds as commander-in-chief.

    In practice, Congress's power to declare war is little more than a nullity. War financing is where the constitutional rubber meets the road. It's true that war declarations were far more regularly invoked before the last half century. But anyone who doubts that the framers saw the power to finance or not to finance as the Congress's real power need only familiarize themselves with English constitutional history of the 17th and 18th century which was the framers' point of reference.

    ... The way this is "supposed" to work is that when the president takes a dramatic new direction like this he consults with Congress. That way, some relative range of agreement can be worked out through consultation. National unity is great. Or at least that's the theory.

    But here we have a case where the president's party has just been thrown out of power in Congress largely, though not exclusively, because the public is fed up with the president's lies and failures abroad. (Indeed, at this point, what else does the Republican Party stand for but corruption at home and failure abroad? Small government? Please.) The public now believes the war was a mistake. Decisive numbers believe we should start the process of leaving Iraq. And the public is overwhelmingly against sending more troops to the country. The country's foreign policy establishment (much derided, yes, but look at the results) is also overwhelmingly against escalation.

    And yet, with all this, the president has ignored the Congress, not consulted the 110th Congress in any real way, has ignored the now longstanding views of the majority of the country's citizens and wants to plow ahead with an expansion of his own failed and overwhelmingly repudiated policy. The need for Congress to assert itself in such a case transcends the particulars of Iraq policy. It's important to confirm the democratic character of the state itself. The president is not a king. He is not a Stuart. And one more Hail Mary pass for George W. Bush's legacy just isn't a good enough reason for losing more American lives, treasure and prestige.

And he points to Paul Kiel's review on war-financing issues related to President Bush's claim he can do just what he wants - cutting off funds has been done before - and adds this -

    … it occurs to me that this 'debate' is really only a debate if you see this not as wrestling over policy between the president and the Congress but as President Bush as an epochal figure, a man of destiny in a grand historical struggle who has powers to answer to grander than Congress or the constitution. I know that may seem like hyperbole saying that. But if you listen to this conversation, I really think that's the subtext. Sure, Congress has the power of the purse, the thinking seems to go. But this is bigger than Congress. Bigger than the niceties of the constitution. This is his rendezvous with destiny in Iraq, the key battle in World War IV or IX (I don't remember which we're up to).

    At a certain level this isn't that complicated. The president and the Congress have a set of intentionally countervailing powers. And it is within that framework that we, as a nation, hash out our direction on great matters of the day like this one. But what I'm hearing is that what President Bush is up to in Iraq is bigger than all that.

    And that leaves us in the dangerous position of the constitution vs. the president's grandiosity.

If it is true that president and the Congress have a set of intentionally countervailing powers - the way the constitution reads and also what almost everyone thinks it says - then we have a problem when the party of the first part doesn't see it that way.  It could get interesting.

For reference see Congressional War Power and the Iraq "Surge" - Can Congress Restrict the Number of Troops in Iraq?

It's a matter of both theory and practice, but it comes down to this -

    WHETHER the United States enters war or CONTINUES at war is the exclusive decision of the Congress. Bit the CONDUCT of that specific war, subject to Congress power of military rulemaking (on torture, the UCMJ, the Geneva Conventions, etc.), belongs exclusively to the President.

So congress actually can nibble at the edges - forbid torture and modify the Uniform Code of Military Justice, and say what the Geneva Conventions mean to this nation (they voted a few moths ago to cede that power of interpretation wholly to the president's discretion, because John McCain said you could trust the president) - but they can only nibble.

But that is not what Senator Kennedy is up to -

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

    Section 1. Prohibition on use of funds for escalation of United States forces in Iraq.

    Notwithstanding any other provision of law, no Federal funds may be obligated or expended by the United States Government to increase the number of United States forces in Iraq above the level for such forces which existed as of January 1, 2007, without a specific authorization of Congress by law for such an increase.

Here's the analysis -

    Of course, as a practical matter, the President can and will veto any such legislation. But even if such a veto could be overridden, the law would be an unconstitutional violation of the separation of powers, impinging on the President's power as Commander in Chief in Wartime. In order to act in the manner Senator Kennedy wishes, the Congress must strip the President of the power the Congress granted him to wage war in Iraq. To wit, the Congress needs to "undeclare" the Iraq Debacle by repealing the Iraq War resolution. A new resolution can be approved authorizing the use of force in Iraq for a purpose the Congress wishes, but I believe Senator Kennedy is wrong when he says: "In October 2002, Members of Congress authorized a war against the regime of Saddam Hussein, not to send our troops into a civil war. I voted against that resolution and feel an escalation of this war only compounds the original mistake of going in the first place."

That won't fly because the Iraq War resolution was a classic blank check -


    (a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

    (1) defend the national security of the United States against the continuing threat posed by Iraq; and

    (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

This "blanket grant" of war power to the President may have been a disgrace, but what's done is done - unless it is undone.  Kennedy needs to rethink this.

And were he to do that, and, instead, get everyone to agree to repeal the damned thing, would a repeal of this Iraq War Authorization be subject to Presidential veto?

Maybe. You look at Article 1, Section 7, of the Constitution -

    Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Yeah, but there's the constitutional Torah - the "penumbra" of what the founders said, like James Madison here - it is necessary to adhere to the "fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested in the legislature."

And Alexander Hamilton, in Federalist 69, here - "It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies - all which, by the Constitution under consideration, would appertain to the legislature."

Thus -

    To provide the President the power to veto a Congressional decision to END a war would run contrary to what Madison and Hamilton were preaching - that a President can not maintain a state of war. This is an occasion, in my opinion, where the plain meaning clearly runs contrary to the original understanding of the Constitution.

So the Framers, as is argued here, envisioned congress using its power to declare and end wars, but not to attempt to "micromanage a war."

So see Federalist 74 -

    THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States."

    … Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

So what can congress do here?  It can go whole hog and just end the war - it just cannot order how it is conducted, at least on military questions. It seems that power belongs to the president.

Theory and practice - what can and cannot be done - is something that needs attention. Now that the new congress is feeling its oats, as they say, and now that people are looking at the rulebook, this could get real interesting.

The Kennedy thing is dead in the water (a bad cliché to use with the man) - that's not how things work - so the first step is the symbolic vote to force the issue -

    Democratic leaders said Tuesday that they intended to hold symbolic votes in the House and Senate on President Bush's plan to send more troops to Baghdad, forcing Republicans to take a stand on the proposal and seeking to isolate the president politically over his handling of the war.

    Senate Democrats decided to schedule a vote on the resolution after a closed-door meeting on a day when Senator Edward M. Kennedy of Massachusetts introduced legislation to require Mr. Bush to gain Congressional approval before sending more troops to Iraq.

    The Senate vote is expected as early as next week, after an initial round of committee hearings on the plan Mr. Bush will lay out for the nation Wednesday night in a televised address delivered from the White House library, a setting chosen because it will provide a fresh backdrop for a presidential message.

    The office of Nancy Pelosi, speaker of the House, followed with an announcement that the House would also take up a resolution in opposition to a troop increase. House Democrats were scheduled to meet Wednesday morning to consider whether to interrupt their carefully choreographed 100-hour, two-week-long rollout of their domestic agenda this month to address the Iraq war.

    In both chambers, Democrats made clear that the resolutions - which would do nothing in practical terms to block Mr. Bush's intention to increase the United States military presence in Iraq - would be the minimum steps they would pursue. They did not rule out eventually considering more muscular responses, like seeking to cap the number of troops being deployed to Iraq or limiting financing for the war - steps that could provoke a Constitutional and political showdown over the president's power to wage war.

It's starting. Something can be done.

This item posted January 14, 2007

[Theory and Practice]

Last updated Saturday, March 10, 2007, 10:30 pm Pacific Time

All text and photos, unless otherwise noted, Copyright © 2003, 2004, 2005, 2006, 2007 - Alan M. Pavlik