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Amid a daylong grilling by the Senate Judiciary Committee on January 18, Attorney General Alberto Gonzales took part in a brief constitutional-powers debate with Sen. Edward Kennedy, D-Mass.

Kennedy argued that Congress could either directly limit troop levels in Iraq or use spending restrictions to do so. "Do you accept that the Congress does have the authority to prevent the president from increasing troop levels in Iraq in the manner I've described?" he asked Gonzales.

Gonzales did not answer directly. "The Framers clearly intended that during a time of war, that both branches of government would have a legitimate role to play," he said. "And, at the far end, you've got the power of Congress to declare war. I think at the other end, you've got the core, sort of, commander-in-chief authority to say, 'Take that hill, [soldiers]!' And then things get kind of murky."

Indeed. The murky, gray areas of the Constitution that describe the war powers of the executive and legislative branches are getting a fresh review in the 110th Congress.

Kennedy and other opponents of President Bush's troop increase plan are promoting the position that Congress has an array of powers to guide the president's hand in the Iraq war. Bush and his supporters are countering that the commander-in-chief has broad authority, limited primarily by Congress's power of the purse. The former view suggests that Congress can tell the president how many troops to deploy, where and until when he may deploy them, and what conditions would trigger withdrawal or funding limits. The latter view suggests that Congress can either cut off all funding and effectively end the war -- or step back and let the president run it.

Lawyers on both sides of the debate are parsing the sections of the Constitution that deal with war powers. Article I gives Congress the power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions." Article II says simply: "The president shall be commander in chief of the Army and Navy of the United States."

David Rivkin, a partner in the Washington office of Baker Hostetler, contends that the president has broad powers that Congress can't touch, including initiating the use of force and directing the military. But he said that congressional power over appropriations is similarly broad. "If Congress really believes this is the wrong war, cut off the funds and face the judgment of history," Rivkin declared at a January 19 Capitol Hill debate among legal scholars, sponsored by the American Constitution Society, a liberal legal group.

On the other hand, Neil Kinkopf, a professor at the Georgia State University College of Law, argued that Congress has far more wiggle room than simply cutting off all funds. "We shouldn't impose upon Congress the Hobson's choice of ending the war completely or going along with the president's abuses," Kinkopf said. "They can take the more tailored step of saying, 'You've gone too far, come back into restraint and fight the war that we authorized.' Sure, the president is the one to prosecute the war, but he prosecutes the war that Congress has authorized, within those limits that Congress authorizes."

Both Kinkopf and Duke University School of Law professor Christopher Schroeder said that Congress could limit troop levels, as Sen. Hillary Rodham Clinton, D-N.Y., and others have proposed; block invasions of Iran and Syria, as Rep. Walter Jones, R-N.C., has suggested; or set time limits or conditions on funding various aspects of the war, as various lawmakers have suggested. "The president is commander-in-chief, and as such, he has command, which the Congress can't take away, of the armed forces and the instruments of war -- subject to the scope and limitations on that scope that Congress provides," Schroeder said.

Congress has declared war only five times: in the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. In 1973, Congress passed the War Powers Resolution, asserting that the use of military force generally requires congressional approval. According to the Congressional Research Service, every president since then has objected to that view, arguing that the resolution is an unconstitutional infringement on his commander-in-chief powers.

In the first Gulf War, for example, Congress authorized the use of force to expel Iraq from Kuwait. President George H.W. Bush contended that he could act without the authorization but appreciated that Congress endorsed his actions. The current President Bush has similar views regarding the authorization of force in Iraq that Congress passed in 2002.

"The president can make war without any congressional authorization," Rivkin said. He argued that if Congress repealed its 2002 authorization but did not cut off funds, the president could still keep forces in Iraq. "Congress removing the authorization to use force would not do it," he said. "The president can wage the war on his own."

Yet in a January 17 letter to congressional leaders, Kinkopf and 22 other law professors contended that at several times in U.S. history, lawmakers have set specific limits on the president's war powers. In an 1804 case, for example, the Supreme Court held that President John Adams's Navy acted illegally when it seized a ship that embarked from a French port, even though Congress had authorized seizures of only those ships headed to French ports.

"Presidential power to act in the absence of congressional action must not be equated with presidential power to ignore statutory restrictions enacted pursuant to Congress's constitutional authorities," the law professors wrote.

Kennedy has been circulating that letter as part of an effort to build support for his proposal to pass a bill requiring Bush to seek congressional authorization for the next phase of the Iraq war. "The [2002] authorization has lapsed; it is no longer there," Kennedy said on January 18. "We believe this president should come back to the Congress and gain an authorization for the increased number of American troops that he wants to send."

Kennedy also explored with Gonzales at the January 18 hearing the question of whether Congress could prevent an invasion of Iran. "I believe that the president needs to have congressional authorization if he is going to invade Iran," Kennedy said. "What is your position on that? Do you agree with me?"

"I'm not aware of any plans to invade Iran," Gonzales replied. After some more jousting in which Kennedy emphasized the need for congressional authorization, Gonzales added: "Senator, for example, if there were an attack by Iran, I think the president would have the constitutional authority to defend this country. And so there may be circumstances where I'm not sure that that would necessarily be true."

Although Kennedy and some other Democratic lawmakers want Congress to act quickly and forcefully on Iraq, others are moving more cautiously. Two groups of senators -- one led by Senate Foreign Relations Committee Chairman Joseph Biden, D-Del., and the other by Sen. John Warner, R-Va. -- have proposed nonbinding resolutions that seek to influence Bush's war plans, rather than direct them.

"We are here not to contravene the constitutional authorities of the president as commander-in-chief but, rather, to accept the offer to Congress made by the president on January 10, 2007, that 'if members have improvements that can be made, we will make them,' " Warner said on January 22 when he introduced his resolution, which would express concerns about Bush's troop escalation and urge him not to increase troops in Baghdad.

Biden, who announced his resolution on January 17, similarly suggested that a nonbinding measure could change Bush's mind, even though such an action would not carry the weight of law. "Only when a president concludes he no longer has any possibility of gaining support for his program, whatever it is, in the United States Congress on a bipartisan basis, only then do presidents begin to change course," Biden said.

If Congress does cut off funds or take another step that seeks to limit the president's powers, Bush may ignore it, setting up a constitutional showdown. The legal scholars at the January 19 discussion suggested that the Iraq debate may not come to that. "If you look at our history, Congress does not try to micromanage," Kinkopf said. "There are great debates and lots of second-guessing, and that should happen."

He suggested that the debates over Congress's and the president's war powers are themselves more what the Founders had in mind, rather than providing a final conclusion in the Constitution on which branch holds more power. It "is sort of the back-and-forth that the Framers foresaw," Kinkopf said. "They liked that gray area."

COMMENTS

• To me the Constitution is very clear. The Congress decides where and when the country will go to war and the President has the last word on how the war will be fought within the money congress appropriates for the war. Congress should have a separate and distinct appropriation that can be used for each and every war. Today they should have an appropriation of money for Iraq and another for Afghanistan and the administration should not be allowed to mix the funds. Likewise, Congress should have an authorization bill that provides the number of troops that may be used in each war. The President should determine how the war will be fought. If he wants to send 21,000 new troops to Iraq, that should be his call as long as he is within the authorized troop numbers established by Congress and does not exceed the appropriation of money established by Congress. Congress has never established this process and has avoided its responsibilities since the end of Korea. Congress loves to have the President making these decisions so they can throw rocks and take no blame for anything to do with wars. Now they are throwing rocks in every direction and again proving themselves totally ineffective and worthless for the American people. taxpayer Posted January 31, 2007 7:22 AM
• Michelle: It is now that the Dems control the House... GovExec.com reader Posted January 29, 2007 3:33 PM
• I always thought that "Commander in Chief" was an honorary title to remind the military that they were under civilian "control." Michelle Posted January 29, 2007 9:52 AM