BY MERCEDES BATEMAN
Despite the blizzard, it was standing room only at last Friday’s debate on congressional war powers sponsored by the American Constitution Society (ACS) and Harvard Law and Policy Review (HLPR). The debate brought together three prominent and distinct voices in the current debate about Congress’ ability to control the latest war in Iraq. HLS professor and former head of President Bush’s Office of Legal Counsel, Jack Goldsmith, moderated the event.
The question up for debate was: How can Congress impose limits on war? After Professor Goldsmith introduced the relevant constitutional text, HLS professor David Barron argued for a strong role for Congress in controlling executive action abroad while NYU professor Noah Feldman, who will join HLS next year, supported unilateral executive control. The lively debate remained jovial, despite some sharp disagreements.
Professor Barron, who recently testified in front of Congress on the issue, responded first. Before arguing his side, he stressed that although constitutional grounds are not the only framework for these questions, it is both politically desirable and historically consistent to think about it in terms of separation of powers. He further argued that there was “not an unreasonable likelihood of judicial intervention” in this debate – a proposition with which Goldsmith and Feldman thoroughly disagreed.
On one side of the debate about war powers is the notion that Congress has the outright authority to control the president’s power. Professor Barron took the position that Congress could control even tactical decisions. However, he did acknowledge that many questions about the separation of powers in wartime are unclear. This view relies heavily on the argument that Congress’ exclusive power to declare war includes the lesser power to declare limited action. This power is further cemented by Congress’ ability to control military appropriations; a point Barron admits is relatively meaningless when one considers the large standing army at the president’s disposal.
The power to control the president in foreign relations is limited at its core by the inefficiency of congressional response. Professor Barron noted that because exercising congressional power in these areas is cumbersome, any resolution that passes over the president’s veto must necessarily represent an overwhelming lack of faith in the president’s competence. Thus, such a safeguard, according to Barron, protects against gross miscalculations. Ironically, Barron thought that the proposed phased exit strategies represented the most constitutionally tenuous argument, as it would necessarily infringe on very tactical decisions by the president.
The other side of the debate favors strong and sole power in the executive. Professor Feldman, who has written a book on this issue, framed his argument in terms of modern warfare. Under Feldman’s view, enhanced communication and speedy troop transport has dramatically enhanced a commander’s capabilities to change strategy and adapt. Thus, under Barron’s view of congressional control, Congress could exercise a great deal of pre-emptive power over decisions in the field and in effect usurp the president’s role as Commander in Chief.
Furthermore, troop deployment, according to Feldman, has always been nine-tenths of strategic warfare – citing General Lee’s success at this during the Civil War. Furthermore, the theater of war has expanded to troops on aircraft carriers and in other countries poised and ready to deploy. Consequently, Feldman argued that troop limits are both practically hard to define and unconstitutional infringements into the president’s exclusive role as Commander in Chief.
Throughout his comments, Feldman stressed that the practicalities of the proposal must be considered within a realistic framework. To Feldman, troop limits would represent an unjustified tactical imposition that would have the practical effect of imposing unnecessary restrictions on the president. However, according to Feldman, Congress could limit both the geography and type of warfare.
While there was sharp disagreement about what steps the president and the Supreme Court might take in the future, both sides agreed that if American troops were attacked abroad, even with a congressional statute barring action, the president could defy Congress. The speakers took a few brief questions before closing the event. Professor Goldsmith aptly summed up the afternoon when he said that “you won’t find a better discussion of these topics anywhere.”