From
Talking Points:
(January 07, 2007 -- 09:41 PM EST // link)
Sen. Joe Biden (D-DE) announced today on
Meet the Press that he intends to run for President again. But it was this
portion of his appearance, on the subject of Iraq and the "surge," which caught my attention:
MR. RUSSERT: You said the other day that this is President Bush’s war, and there’s...
SEN. BIDEN: It is.
MR. RUSSERT: ...there’s really little Democrats can do. Why not cut off funding for the war?
SEN. BIDEN: I’ve been there, Tim. You can’t do it.
MR. RUSSERT: Why?
SEN. BIDEN: You can’t do it. It’s—what—because it made sense in the Constitution when you said you could cut off funding when you had no standing army. We have a standing army with a budget of hundreds of billions of dollars. You can’t go in and, like a tinker toy, and play around and say, “You can’t spend the money on this piece and this piece and”—he—able—he’ll be able to keep those troops there forever constitutionally if he wants to.
MR. RUSSERT: Why not have legislation then that would cap the number of troops in Iraq?
SEN. BIDEN: Because it’s very difficult to—it’s constitutionally questionable whether or not you can do that. I think it is unconstitutional to say, “We’re going to tell you you can go, but we’re going to micromanage the war.” When we wrote the Constitution, the intention was to give the commander in chief the authority how to use the forces, when you authorize them, to be able to use the forces.
Biden here is his reliably muddle-headed self. Congress can declare war (or, in this case, resolve to authorize the use of force) but not reverse itself later? Congress cannot redline certain defense expenditures?
Giving Biden the benefit of the doubt, what I think he is trying to say is that it would be utterly unproductive for Democrats in Congress to get bogged down in the tactical minutia of our Iraq policy. I completely agree. To surge or not to surge is really not the issue. But it would be nice to see a Democratic presidential contender better able to articulate that notion.
more...On cutting funding:
KERRY: There are all kinds of things that the Senate can do. They can change the dynamics here very significantly, not the least of which, obviously, are serious accountability hearings.
Secondly, we have the ability in the Congress to pass one resolution or another or to put into law certain kinds of policies. I mean, you remember back in the days of the Contras in Central America, the Congress passed what was called the Boland Amendment and actually forbade certain activities from taking place.
So Congress has a certain power here. I think before we get into that, it would be so much better if we could sit down with the president, with Condoleezza Rice, and really talk through how we come together, both parties, take the politics out at the water's edge, and get a policy that works for
America.
On Congress' Constitutional role:
KERRY: I emphasize to you as we did to the administration, and I met with Secretary Rice before I left,
we are a separate and co-equal branch of government. We have important responsibilities to our constituents and the American people for foreign policy. We saw an election of profound importance last November where the Democrats took control of the Congress and we have responsibilities as chairman of sub-committees, as members of the Foreign Relations Committee to get this right. I've been at this for a long time now and the efforts that I made with Vietnam, the efforts that I made with the Philippines, with Central America, with Latin America -- they all came about because we were prepared to try to engage in a discussion and I just believe that it's important to talk. Ronald Reagan talked to Gorbachev. Richard Nixon sent Kissinger to talk to the Chinese. We need to engage. This is too dangerous a world not to. And we're gonna, we're trying to help the administration and I think they will be pleased with today's discussion, I really do.
Sunday, January 07, 2007
Marty Lederman
I
have argued in this space that because the Democrats appear now to have come out firmly against an escalation of troops in Iraq, and in favor of a deescalation of the conflict, they ought to pass a bill compelling the President to abide by such decisions.
Unfortunately, on
Meet the Press this morning, Senator Biden denied that the Congress has such a constitutional power:
Snip...
Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not -- this wouldn't be that. There would be no congressional officials here overseeing the President's discretionary responsibilities; no requirement that the President get approval of one or both Houses before taking certain actions. There would, instead, simply be limitations on a war imposed by statutes passed with the President's signature or by supermajorities of both Houses of Congress over the President's veto.
Just as the McCain Amendment prohibits the President from using cruel, inhuman and degrading treatment against Al Qaeda prisoners; just as numerous other statutes and treaties place limitations on how the President can conduct war or other conflicts (e.g., the torture statute; the War Crimes Act; the War Powers Resolution; FISA; the Habeas Act; the UCMJ (upheld in part in Hamdan, over the President's objections that it would impinge on his ability to defeat the enemy); the Boland Amendments; a bunch of statutes at the tail-end of the Vietnam War prohibiting the use of funds for the use of armed forces in particular nations, such as Cambodia); just as numerous other statutes have authorized hostilities only for certain purposes and on certain conditions, thus imposing implicit limitations (e.g., the statute upheld in Little v. Barreme; the 1993 Defense authorization provision that funds could be obligated in Somalia beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia"; etc.); -- and odds are that Senator Biden voted for the vast majority of these statutory limitations on the Commander-in-Chief . . .
Snip...
The issue is a complex one. Arguments are, indeed, often made for disabling Congress from limiting the Commander-in-Chief's discretion. And one can certainly imagine the President and the Vice President making such arguments. But Democratic critics in Congress? Does it make any sense for them to disclaim some of Congress's most important powers for checking the Executive, when there is a rich history of such statutory limitations and where there is almost no judicial authority questioning Congress's power?
Ask yourself this: Imagine a hypothetical situation in which an armed conflict has gone disasterously awry, resulting in a devastating and spiraling civil war in a major Middle Eastern nation and profound harms to both U.S. troops and our nation's long-term foreign interests. Over 70% of the U.S. public concludes that the President's proposal to escalate the conflict will only make the disaster worse, and is for that reason a terrible mistake. Over two-thirds of each House of Congress -- supermajorities that include numerous members of the President's own party -- are willing to vote to forbid him from taking such a fateful step.
more...
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