Friday, February 16, 2007

DEMOCRATS, THE CONSTITUTION AND IRAQ: A Washington Post article today outlines the strategy of the anti-war left to force an ignominius retreat from Iraq while at the same time not defunding the military. To this end, Speaker Pelosi and Congressman Murtha intend to try and hamstring the President’s ability to send troops to Iraq and to restrict his ability to extend tours of duty in Iraq. Further, Speaker Pelosi has claimed that the President cannot use any force against Iran without first seeking the authorization of Congress.

Leaving aside the major questions of the detrimental ramifications of these proposed acts by the Democrats, another issue is their constitutionality.

Whether the President would have to first seek Congressional approval for any use of force against Iran, including a limited strike to cripple their nuclear program, involves the Constitution, the War Powers Act of 1973, and how these provisions have been treated historically. As pointed out recently in a report released by the Congressional Research Service, there have been "hundreds of instances in which the United States has used its armed forces abroad in situations of military conflict or potential conflict," and many of these have been without first seeking Congressional authorization for a declaration of war. Indeed, Congress has only been called upon to formally declare war on eleven occasions. Given that even the War Powers Act only requires the President to seek Congressional approval within sixty days of the onset of hostilities, it would seem that Speaker Pelosi is overreaching in her attempt to limit the President's discretion in regards to use of force against Iran.

An initial parousal of the law shows that the other actions proposed by Speaker Pelosi would also likely run afoul of the constitution. While Congress certainly has the power to fund the military and to say whether land forces may be committed to a total war against another nation, it is the President who has the executive power of command over the day to day activities of the forces. Specifically, The United States Constitution, Article I, Section 8 provides that the "Congress shall have power to . . declare war . . .; to raise and support Armies . . .;to make Rules for the Government and Regulation of the land . . forces. . . . Article II, Section 2 provides that "The President shall 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 . . . ."

Since the Congress has already authorized the use of force in Iraq, it would seem that, at the least the current plans of Pelosi and Murtha to hamstring the President would infringe on the power of the President to command the military. As an aside, it should be noted that the sham non-binding resolutions of Congress condemning the surge in Iraq are a criticism of command decisions of the President. Thus, were the Congress to pass a law stating that the President could not authorize the surge, it would be an unconsitutional restriction on Presidential authority.

Interestingly, none of these issues have been raised by the press in their discussions with Speaker Pelosi, Congressman Murtha or their democratic colleagues. Regardless, it appears that we are heading towards a constitutional crisis in the very near future brought on by the overreaching of the liberal wing of the Democratic party.

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