Decision ‘08

The Limits of Congressional War Powers

Noah Feldman and Samuel Issacharoff write in Slate:

…Congress can declare that a war must come to an end. Congress can even say the conflict must be over by a specific date, as Sen. Obama has proposed. But once Congress has authorized the president to fight, it has neither the competence nor the 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.

The tactical essence of war is the decision to place some number of soldiers in a particular place at a particular time. Whoever controls that decision controls the war. To give this power to Congress would be to leave the president without true command authority over his forces and the flexibility needed to respond to military exigencies. For Congress to say how many troops must or must not be in the theater of war at a particular moment would make Congress into the effective commander in chief.

…In exceptional cases, Congress has in the past limited troop numbers in a particular theater, as when the Vietnam conflict came to a close. But this occurred only as part of a withdrawal of all troops, and only after a final peace treaty had been signed. In a January letter to Congress, a group of distinguished constitutional scholars argued that Congress could permissibly place a “ceiling” on the number of troops assigned to Iraq.

But in practice, specifying the number of troops comes perilously close to the kind of micromanagement by Congress that the same scholars specifically repudiated as unconstitutional in their letter.

It might conceivably be argued that adding troops in Iraq changes the nature of the war and so must trigger a new authorization of war. But the realities of this war contradict this imaginative interpretation. Troop levels have fluctuated up and down by more than 20,000 troops with some regularity since March 2003, depending upon the strategy and tactics chosen by the president and the schedule of deployment and redeployment. These fluctuations were part of a (failed) attempt to win the war, not some fundamental change in its nature or geographical scope.

Preventing Congress from capping troop levels in Iraq suggests that the president could tomorrow reassign troops from Afghanistan to Iraq—or, indeed, from Fort Bragg to Iraq—and Congress could do nothing about it. But there is nothing especially strange about this. The president does just this every day when he decides which troops will be assigned where (through the secretary of defense). What would be strange would be Congress telling the president that a particular unit must serve in Iraq or Afghanistan, or must be ordered home.

Indeed, as far as we are aware, at no time in our history has Congress claimed the right to exercise any war power beyond the following: 1) to declare, undeclare, and provide funds for war; 2) to define the field of battle and the nature of the conflict; 3) to enforce law-of-war limitations on the conduct of warfare; 4) and to demand that the president report emergency military actions to Congress for its approval within a fixed period of time.