Reining in Bush’s Presidency (12/15/2006)

The Constitution gives Congress, not the president, most of the powers to wage war and define foreign policy. Now Congress must assert that power over the Bush administration, writes David Adler.

The time is right for Congress to reassert its vast constitutional powers over war and foreign affairs and bring an errant presidency to heel. The widespread opposition of the American people to the war in Iraq, which has become George W. Bush’s career in carnage, and the longing to extricate the United States from the disaster, provide the motive. The resurgence of Democrats in Congress, with the expectation of institutional renewal and partisan yearnings, provides the opportunity. The release of the Iraq Study Group’s report, with its dozens of recommendations for change in U.S. foreign relations, and its authors’ criticism of Congress for failing to exercise its powers and perform its duties in foreign affairs, provides the inspiration. For many, it has been an article of faith that only a disaster that provoked demands for change from the citizenry could end the reign of the Imperial Presidency. That combination has emerged, and it represents a wake-up call for Congress to restore constitutional governance to the conduct of our foreign relations.

Many Americans have been confused or, rather, misled about the constitutional allocation of foreign affairs powers. Missives from the White House that have exalted presidential power above constitutional provisions, careless accounts from journalists, distortions by academics and misrepresentations by members of Congress share much of the blame. While contemplating Democratic control of Congress, Sen. Larry Craig erroneously observed that “Congress cannot control the commander in chief.” That could not be further from the truth.

The framers of the Constitution granted to Congress the lion’s share of the nation’s foreign affairs powers. The War Clause vests Congress with the sole and exclusive authority to initiate military hostilities, from minor acts to full-blown, total war, and it provides Congress, in the words of James Madison, with the authority to “commence, continue and conclude war.” That understanding was reaffirmed by Supreme Court decisions and governmental practice at the dawn of the republic.

As commander in chief, the president is subordinate to Congress. His lone constitutional power consists of the authority to repel sudden invasions of the United States; the remainder of the powers attributed to the post are conferred by statute. What Congress gives, Congress may take away. Historically, Congress has imposed instructions on various commanders in chief, including Washington, Lincoln and FDR, with respect to troop deployments, strategy and tactics. In 1804, the Supreme Court, in an opinion by Chief Justice John Marshall, rebuked President John Adams for exceeding statutory limitations during the Quasi-War with France from 1798-1800.

Americans have every right to expect their government to obey the Constitution. Congress has the power to restore constitutional government in war and foreign affairs, and it must exercise it.

Adler, a political science professor at Idaho State University, has written and lectured nationally and internationally on the Constitution and presidential power. You can write to him at Department of Political Science, Box 8157, Idaho State University, Pocatello, ID 83209.