War Powers of the Congress and the President

As the Democrats in Congress mull over what, if any, actions to take in regards to the Iraq war, Slate has weighed in on some of the Constitutional issues involved.

The Constitution gives Congress the power to declare wars, fund them, and oversee the way they are fought. Yet the Constitution never says exactly how these powers are to be reconciled with the president's authority as commander in chief. The Constitution surely must empower the president to fight wars effectively enough to win them. That means that war must be conducted under the president's direction, not run by committee.

So . . . .

Could the Congress pass a substantive resolution ordering the President not to send 20,000 more soldiers to Iraq? No.

Once Congress has authorized the president to fight, it has neither the competence nor the [constitutional] authority to tell him which troops should be placed where on the battlefield. Nor can it order him to withdraw particular troops—or particular numbers of troops—by a specified date, as Obama's proposal, among others, would do. Finally, Congress cannot limit the number of troops who may fight.

Can the Congress tell the President to be out of Iraq within 30 days? Yes.

Can the Congress tell the President to limit the battles in Iraq to fighting against al-Qaeda and not the Shia? Probably not under the existing constitutional tests.

While the Constitution provides some bright lines as to the separation of powers between President and Congress in regards to war, there is also a lot of grey area that we may well see tested in the future. This article provides a good overview. Please read the entire article here.