Richardson Fails Constitutional Law

Since I’m studying for a Constitutional Law final anyway, I couldn’t help but notice that Bill Richardson has fallen into the argument that the Congress can “undeclare” the Authorization for Military Force in Iraq.

I believe that deauthorization, on the basis of Article I of the Constitution, also would have a Congressional reaffirmation of its power to declare war, which it has, but which it has not exercised. The President can’t veto this. The issue probably would go to the courts…. But it’s decisive, it’s strong, it’s direct, it’s specific, it’s easy to understand by the public, and that’s the course I believe it should take.

Richardson’s analysis has no basis in the text of the Constitution or the history of the Constitution. The enumerated war powers of the Congress do not give them the ability to “undeclare” war through any means other than refusing to fund it. The reason is inherent in the historical background of the time. At the time of the Founding, a declaration of war was a sign of a certain legal status that denoted that a conflict had reached a level where normal diplomatic relations would be severed, trade could be restricted, and other consequences of a state of conflict would come into play. The Congress was given the power to declare war because it would effect the status of U.S. citizens who might be living in the belligerent nation, and it would effect the course of international trade with that nation. Given the other powers of Congress, it was logical that Congress would have a vested interest in having a say in a decision that would so impact its enumerated powers.

Wars were ended by signing a peace treaty with the other side that denoted an end to hostilities and a return to the legal status quo. Under the Constitution, the power to make treaties is a function of the Executive Branch: U.S. Const. Art. II, § 2, cl. 2. The Senate has the power to approve those treaties, but it would have been unthinkable that the Congress could undeclare war when such an act would require them to infringe upon the domain of the Executive.

Of course, Congress didn’t exactly declare war in the Iraq AUMF. Nor would the war be “ended” by a treaty. However, to rescind the AUMF would still infringe upon the President’s power as Commander in Chief of the nation’s armed forces. The Congress could try and rescind the AUMF, but it would make little difference at this point. For one, the President could credibly claim that the Iraq AUMF is no longer operative — we’re not fighting the government of Iraq. The operations in Iraq could just as easily be covered by the September 14, 2001 AUMF against al-Qaeda. There is no question that al-Qaeda is operating in Iraq (utterly misinformed Democratic claims to the contrary aside), and that the September 14, 2001 declaration broadly authorizes the President to go after al-Qaeda. If the Democrats want to rescind that declaration, they would also have to re-authorize the President to only fight al-Qaeda in certain place. Even if that passed Constitutional muster — which doesn’t seem likely — it would be tactically idiotic.

Richardson is wrong. The AUMF gave the President authorization to go to war to fight al-Qaeda in 2001 and enforce the Gulf War cease fire against Iraq in 2002. In order for Congress to “end” the war in Iraq, they could not merely rescind the latter, but they would have to rescind both. Moreover, the text of the Constitution does not give Congress the latitude to “undeclare” war. A positive grant of power does not necessarily imply the opposite.

Congress has two remedies if they really wish to “end the war” in Iraq. They can simply not pass an appropriations bill and starve the President of money to fight the war, or they can pass a bill which explicitly de-funds the war and then override the President’s veto. They can’t attach conditions, they cannot micromanage the war, and they cannot try and revoke their own authorization. The Congress has been given the power of the purse, which is a significant power. But if Congress could micromanage the war, then the Executive would no longer be a Commander in Chief, and the principle of separation of powers would no longer apply. It is simply untenable for the military to have 535 commanders. The unity of command is key to a military operation, which is why the Founders gave that power to the single Executive.

Richardson also makes the incorrect argument that the lack of WMDs in Iraq someone invalidates the 2002 AUMF. The point is ultimately moot, the President can now unequivocally claim that the presence of al-Qaeda in Iraq means that the current operations in Iraq now fall under the 2001 AUMF rather than the 2002 AUMF.

The Democrats have no constitutional way out of this situation. They can either cut the funding or not, but they can’t try to run their own foreign policy. The reality is that Iraq is part of the war on terrorism, and if the Democrats don’t believe so, al-Qaeda apparently did not get the memo. The Constitution of the United States doesn’t give Congress the ability to play Commander in Chief, nor does it envisage Congress “undeclaring” war without using the power of the purse. The weight of scholarly evidence strongly points against a reading of the Constitution that so degrades the President’s power as Commander in Chief. The Democrats authorized the President to go to war, and they have to live with that decision. Trying to take it back now other than by cutting funds for further military operations is not something that they have the constitutional power to do.