Is Murtha Creating A Constitutional Crisis?

Rich Lowry argues that John Murtha’s “slow bleed” strategy is unconstitutional:

The president, not Congress, is the commander in chief. Congress was never meant to, nor is it suited to, direct tactical military decisions, as Murtha seeks to do with his restrictions.

Arguably, his maneuver will be the most blatant congressional intrusion on the president’s war-making powers in the nation’s history. Congress choked off the Vietnam War in the 1970s, but only after U.S. ground troops were mostly already out of the country and chiefly as a matter of cutting off aid to South Vietnam.

What Murtha is doing is most certainly wrong and repugnant to the future of this country (and that of Iraq), but I’m not entirely sure that it is unconstitutional. Art II, § 2, cl. 1 does make the President the Commander in Chief of the nation’s military. Furthermore, Art. II, § 1, cl. 1 vests the President with the executive power. If that were the whole of the story, Lowry would certainly be right.

However, one can argue that Congress does have more than the mere power of the purse in deciding how the military can be run. Art. I, § 8, cl. 14 gives Congress the power to “make rules for the government and regulation of the land and naval forces” — which is what Murtha is arguably doing.

Still, while there’s some room for ambiguity, I agree with Lowry that Murtha’s plan is certainly repugnant to the spirit of the Constitution, and possibly the letter as well. Congress does have the power to provide for the government and regulation of the Armed Forces — for instance through setting up the Uniform Code of Military Justice. However, the idea that the Founders intended to give Congress the ability to directly influence military policy in such a direct way does not seem to be justified. The President is the Commander in Chief of the nation’s military. The Founders deliberately placed that power in the hand of the Executive Branch rather than the Legislative Branch because an effective military cannot run with 535 commanders trying to call the shots. War is not democratic, but requires a clear chain of command.

What Murtha is trying to do is undercut the war powers vested in the executive by the Constitution. His goal in that regard is eminently clear, and it could very well precipitate a Constitutional crisis.

For all the Democrats thinking that’s a good thing, sooner or later a Democratic President will have to use the same powers. A precedent that allows Congress to invade into the powers of the executive is not a healthy thing for American democracy, regardless of one’s current political affiliation. The Founders did not intent for Congress to have such direct control over the nation’s military affairs. Congress most certainly can cut off funding to stop a war — but despite all the rhetoric about how the nation really wants us out of Iraq, Congress seems to have no interest in exercising their constitutional prerogatives. We’re told that 60% of the American people want the war to end now — which if true would make cutting off funding a political no-brainer. But the Democrats don’t seem to want to do that. Even Murtha is trying to mask his intentions.

The reality is that the Democrats don’t want to be accountable for what’s happening in Iraq. All the fatalistic rhetoric is an effort to get themselves off the hook. If it’s all Bush’s fault, then they can’t be blamed for what happens. The problem with that logic is that they’re in charge of Congress now. Bush bowed to their pressure with the “surge” and now Democrats like Sylvestre Reyes have flipped their position on the issue. They either have to decide to accept that the consequences of withdrawal are too dangerous to be seriously considered or cut the funding. They have Bush right where they want him — for the most part he’s a lame duck, and he’s politically rudderless. Murtha’s attempt to create a “slow bleed” is a disgusting political calculation designed to do what Congress does not apparently have the will to do openly — which is not what the Founders ever intended Congress to be able to do. If they want to see failure in Iraq, then Congress can make it happen by cutting the funding for future operations. But that would leave them in the position of taking some responsibility for the situation. For a Congress that was supposed to embrace the value of accountability, it seems that they’re doing all that they can to avoid it.