ACRU

Put Your Lack of Money Where Your Mouth Is

The subtext of yesterday’s Joint hearing in the House featuring General Petraeus and the coming Senate hearing, is the position that the Democrats in Congress will take when the dust settles. Some Democrat warhorses, like Senator Kennedy, staked out their position in advance of the hearings and the “Petraeus Report.” But for the Liberals to actually DO anything will require the consent of their back benchers in both Houses. And, that is very much an undecided outcome.

When the United States engages in military action, the Constitution requires two forms of congressional consent. One is a declaration of war, a joint resolution supported by a majority of both Houses of Congress. In some recent acts of war, for instance in Bosnia, this has not been done. However, the Supreme Court has white-washed that lack by saying it wasn’t necessary, since Congress “voted for the money for the military.”

Now, technically, that’s not what the Constitution says. But in this instance, Congress passed Joint Resolutions (which were folded into laws) in 2001 and 2002, authorizing the “use of military force across international boundaries,” as determined by the President. Only those who bury their noses in dusty history books know this is nearly word for word the authorization Congress gave President Jefferson to go after the Barbary Pirates back in 1805. (That was the only other time that Congress declared war without naming one or more nations as the target.)

The other step which the Constitution requires is that Congress must appropriate the money for any military action, the same way that it spends public money for any other purpose. Congress has done that for the wars that are going on in Iraq, Afghanistan, and in a much lower-grade way in Indonesia, India, Pakistan, Britain, Germany, and other places around the world.

Yesterday, a Congressman posed a hypothetical question to General Petraeus about Congress “withdrawing authority for the war.” Let’s examine his hypothetical. If the Democrats in Congress, plus a handful of Republicans, actually agree to “stop the war” in its tracks, what are their constitutional options to accomplish that?

They could withdraw the authority of the President to “use military force” in Iraq, or elsewhere. This requires only a majority vote in both Houses. No official action is required, or even permitted, by the President. The Democrats have a majority in both Houses. Yet, this step will not be taken, and here is why.

There are roughly 42 so-called “Blue Dog” Democrats in the House. These are somewhat conservative Democrats from largely conservative districts in the South. These Representatives had to appear conservative to win election and will not be reelected if they stray too far from that stance. The idea of declaring the war over while our soldiers are still in the field is anathema in districts like mine, NC 11th in the Blue Ridge Mountains where the events like those depicted in Cold Mountain really happened to real people.

Our current House of Representatives cannot muster a majority to terminate the declarations of war. And, the Senate, knowing the status of the House, has no reason to climb out on that limb, and let the House saw it off.

The other option is to cut off the money to “terminate the war.” Ah, but this requires legislation and the Democrats would have to pass a law to end the appropriation of money for the military to fight on. Perhaps they could muster a majority vote for this purpose, but it would be subject to a presidential veto — support for which would be very unlikely.

So, the bottom line is — terminating funding requires a two-thirds majority in each House, the number needed to override a veto. The Democrats plus a few Republicans in each House do not add up to a two-thirds majority in either House. Therefore, neither House of Congress will pass a de-funding bill, only to see it fail in the end.

The “anti-war” Members of Congress in both Houses will give thundering speeches about the “failure” of the surge, and of the war. Members will praise the service and integrity of General Petraeus in the hearings while quibbling both his integrity and his competence in the questions they put to him.

The bottom line is this: There will be only be speeches and slanted questions by those who oppose the war. Neither Senate Majority Leader Reid nor House Speaker Nancy Pelosi will introduce a withdrawal of the declarations or a termination of funding for action this year.

About the Author: John Armor was a member of the Bar of the Supreme Court for 33 years, and briefed 18 cases there. John_Armor@aya.yale.edu He is now a counsel to the American Civil Rights Union. www.theacru.org