War Powers and the Constitution

In an unexpected turn in the political maneuvering surrounding the war in Iraq, Democratic Senator Russ Feingold has started hearings inquiring into the possibility of Congress forcing an end to the war in Iraq. Feingold has begun to investigate whether Congress has the constitutional authority to amend the Authorization for the Use of Military Force, or AUMF -- the bill that granted President Bush the authority to invade Iraq -- in order to force withdrawal of U.S. forces.

This assertion of Congressional power over the Executive is sure to run afoul of the President's carefully constructed theory of the "plenary" powers of the presidency, which claims literally unlimited authority for the President in matters of national security. Even if such a Congressional assertion of power could gain enough votes to pass (which is unlikely in our closely divided Congress), whether or not it would withstand scrutiny by the courts is unclear.

Despite my desire to see the war in Iraq over as soon as possible and my general tendency to dislike executive power, my initial reaction to Feingold's plan was that it would probably be unconstitutional, and would almost certainly be too politically divisive to actually become law. While I still think that such a bill is unlikely to be passed, an interesting point by Glenn Greenwald has changed my impression of the constitutionality of such a bill. Greenwald pointed out that during the American engagement in Somalia during the Clinton administration, numerous Republican senators and representatives pushed for a congressionally-mandated withdrawal. Most interestingly, they actually succeeded in their efforts.

It is truly amazing how shamelessly hypocritical and dishonest a number of Republicans have been in loudly calling Feingold's proposition unconstitutional -- many of the loudest voices (such as John McCain) were the strongest supporters of an almost identical plan during the conflict in Somalia. While this hypocrisy is certainly interesting, what is much more important is that since the amendment of an AUMF to force withdrawal has already been successfully done by the Republicans, there is a very solid precedent which makes Feingold's plan much more politically feasible.

If the plan actually gains popularity and can attract enough votes, it will almost certainly spark a serious confrontation between Congress and the Executive regarding the constitutional powers of each branch. The seemingly limitless assertions of power by the President (which have thus far not been squarely challenged) are certain to lead to a less-than-friendly Executive response should Congress assert this power. It is hard to predict how serious such a conflict could become, but it is certain to be a clash unlike anything today's Americans have seen before.