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Constitution Day and Congress' War Powers

Today, thanks to a law authored by Sen. Robert Byrd (D-W.Va.) in 2004, our country observes Constitution Day. Public schools and government offices are encouraged by the law to provide educational programs to promote a better understanding of the Constitution. (A 1956 law also designated this Constitution Week.)

Today's commemoration of the 220th anniversary of the signing of our founding document couldn't be more timely as Congress grapples with one of its weightiest responsibilities under the Constitution — superintending our military forces during times of war and peace. This month is crucial as Congress assesses our Iraq mission.

When President Bush vetoed the first Iraq supplemental funding bill in early May on grounds that it inhibited his powers as commander in chief, the two branches were forced to compromise to ensure the troops would be adequately armed and supplied. The resulting compromise required two reports by Sept. 15: one from the commander of U.S. forces in Iraq, Army Gen. David Petraeus, on military progress in quelling the insurgency, and the other from U.S. Ambassador Ryan Crocker on the political progress being made by the Iraqi government in securing that country's future.

Since Congress returned from its August recess two weeks ago, committees and subcommittees in both chambers have been hearing testimony on separate reports it requested on Iraq from the Government Accountability Office and an independent group of military experts, as well as from Petraeus and Crocker. The ultimate aim of all this information gathering is to make informed decisions about the extent and direction of America's future course in Iraq — financially and militarily.

Contrary to what some have mislearned about Congress' war powers, they don't end with a declaration of war (or authorization of force) and devolve completely onto the shoulders of the commander in chief. The Constitution is explicit about Congress' ongoing duties to raise and support armies, provide and maintain a navy and militia, and appropriate funds for these activities.

Moreover, Congress is charged with making "rules for the government and regulation of the land and naval forces." Those duties are not suspended during times of war, though most reasonable observers agree they should not extend to micromanaging the military strategies and tactics of the president and his military commanders. But it certainly does not preclude Congress, by law, from making rules for the "redeployment" of those forces from a war (backed by its powers of the purse).

The president's powers as commander in chief of the armed forces to wage a war authorized by Congress were never intended to be of indefinite duration, subject only to his determination of when to sue for peace or otherwise withdraw from the field of battle.

In short, the war power is shared by the two branches, and Congress neglects its sworn duty to uphold the Constitution if it does not responsibly shoulder its fair share of that burden. That includes drawing on its oversight findings to join with the president in developing plans to end our involvement in a war.

In a previous column I noted an apparent disconnect between hard-hitting oversight hearings being conducted by committees of both chambers and the majority leadership's arbitrary scheduling of unreported bills for floor action. Shorn of any pretense of being the products of a deliberative committee process, these unreported bills nevertheless served the narrower purposes of appeasing an anti-war, partisan base and pressuring a few vulnerable members of the other party. It's been a game of donkeys trying to pin the tail on the elephant, using blindfolds, darts, calendars and spin to pick the next troop withdrawal date.

Since the beginning of this year, for instance, the House has considered seven measures relating to our Iraq military policies, yet only two of those bills (the Defense authorization and a military readiness measure) were reported by a policy committee of jurisdiction. A third bill reported from the Armed Services Committee on a 55-2 vote, requiring the president to develop and transmit to Congress a comprehensive withdrawal plan, was pulled from floor consideration prior to the August recess because some Democrats considered it too bipartisan. Similarly, a bipartisan proposal in the Senate to implement the recommendations of the Hamilton-Baker Iraq Study Group was blocked as being too weak.

Democratic Rep. Jerry McNerney (Calif.) told The Washington Post upon returning from Iraq in August, "I don't know what the [Democratic] leadership is thinking" with these partisan withdrawal resolutions. "We should sit down with Republicans, see what would be acceptable to them to end the war, and present it to the president." Similar advice was transmitted to House leaders in early September by bipartisan groups of Members. It seems to have sunk in. Both Senate Majority Leader Harry Reid (D-Nev.) and Speaker Nancy Pelosi (D-Calif.) indicated late last week they would now be open to scheduling more pragmatic, centrist legislation that has bipartisan support.

It's not that the Petraeus-Crocker testimony changed many minds in Congress, or that public opinion or the situation in Iraq has shifted significantly. It's simply a matter of finding sufficient common ground to overcome the 60-vote threshold to end Senate filibusters and get something to the president's desk.

This new attitude on the part of the Democratic leadership does seem to signal that Congress is getting serious about actually exercising its shared war powers. This is at least partially because the statutorily mandated progress reports have raised public expectations that Congress intends to act responsibly on them. The work of the committees may hold the key to whether Congress is now capable of forging a bipartisan, national consensus on Iraq.


Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.