Thursday, March 11, 2010

The House of Representatives today voted down H. Con. Res 248, a bill from Congressman Dennis Kucinich that would have directed President Obama “to remove the United States Armed Forces from Afghanistan.” The bill was defeated by a 356 to 65 margin, with some 189 Democrats and 167 Republicans joining forces against the bill. Along with Kucinich, other leading figures of the anti-war Left (and Right) joined to sponsor and support the measure, including Reps. Barbara Lee (D-CA) and Ron Paul (R-TX). Although well-intentioned, with this misguided resolution Congressman Kucinich is wrong on the law, wrong on the politics, and wrong on the policy.

First, what Rep. Kucinich is proposing is unconstitutional. Section 5(c) of the War Powers Resolution states that when “the United States Armed Forces are engaged in hostilities…without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.” Giving Congress the ability to overrule the executive through a concurrent resolution is known as a “legislative veto.” It was widely used (nearly 200 times) by Congress until 1983, when it was ruled unconstitutional by the Supreme Court in INS v. Chadha.

The Court ruled that overruling an action of the executive “requires action in conformity with the express procedures of the Constitution’s prescription for legislative action: passage by a majority of both Houses and presentment to the President.” A bill passed by one only House of Congress expressly violates the requirements spelled out in Article 1, Section 7 of the Constitution. A Court ruling a few months later ruled that even a legislative veto by two Houses of Congress is unconstitutional.

Even if one believes that Chadha was wrongly decided (which many do – see here and here) the constitutionality (or lack thereof) of the legislative veto is almost universally agreed upon. Even Congress’ own research service says that the legislative veto is “constitutionally suspect under the reasoning applied by the Court.”

Also, the War Powers Resolution only applies when Congress has not given “specific statutory authorization.” The “Authorization for Use of Military Force” passed on September 18, 2001 grants the president general authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001….” Regardless of one’s policy ideas, it’s difficult to make a legal argument against the war in Afghanistan. Invoking Article 5(c) of the War Powers Resolution is surely the wrong legal tactic to affect US policy.

Second, the proposal is a political mistake, especially as the Democratic majority in the House of Representatives heads toward the 2010 mid-terms. The combination of the continuing war in Afghanistan, the Iranian nuclear issue, and the planned August 31, 2010 withdrawal of combat forces from Iraq will push foreign and security policy issues to the forefront in the election. If Democrats can’t find a unified message on foreign policy, their already tenuous position will become that much more fragile.

Furthermore, forcing congressional Democrats and the White House to use significant Republican votes allows two possibilities: at best, Republicans can co-opt the Democratic message on foreign policy, removing it as a campaign issue; at worst, Republicans will be able to run in the fall against the “Kucinich wing” of the Democratic Party. With an eye to the midterms, it would be premature to call the vote a “lopsided 356-65 win.”

Lastly, Kucinich’s proposal is misguided as a policy of the United States. Pulling out of Afghanistan, just as the American-led coalition is making progress, would be a grave mistake; doing so within 30 days would be disastrous. The US and NATO effort in Afghanistan has been far from perfect, but to abandon our efforts now would be to surrender the country to the Taliban. Afghanistan would likely descend into civil war, returning the country to the status quo before the US invasion in late 2001. The US presence in Afghanistan comes at a high cost to our nation, both in lives and resources, but its removal would be catastrophic.

Kucinich’s stated goal, even in the (likely) event of losing the vote, was to break congressional “silence” on the issue, and he did just that. But invoking a 30-year old technical piece of legislation of dubious constitutionality to foster debate is the wrong political tactic for the wrong foreign policy goal.


Dave Reidy said...

Excellent post Beau; but it raises several questions for me. While I agree with you on the policy and politics issues, I'm concerned about the legal component. What power does Congress have to influence the course of events in a military engagement that has been sanctioning by Congress? Are they restricted to threatening to withhold funding, or is there another mechanism they can use?

Beau said...

That's a great question, Dave.

First - the War Powers Resolution, the result of congressional efforts to restrain the executive branch after Vietnam, was meant to apply to military action that Congress did NOT authorize. Since Congress pretty clearly authorized the initial invasion of Afghanistan, it doesn't seem to apply (besides the fact that Article 5(c) is widely viewed as unconstitutional).

But, it is an interesting legal question to ask how broad the "Authorization to Use Military Force" from Sept. 18, 2001 is in authorizing executive action. It seems reasonable to assume that the initial invasion was legal, but also that it would NOT authorize troops in Afghanistan 20 years from now. However, it's an open question as to when the US troop presence in Afghanistan ceases to be legally related to the 9/11 terrorist attacks.

What can Congress do?

For starters, and this is an obvious point, Congress can't do anything unless it has either a majority or (if it needs to override a presidential veto) a two-thirds majority.

If Congress decides to act, the easiest way to affect the military engagement in Afghanistan is to go after the funding component. A congressional appropriation that provided money ONLY for the withdrawal of US troops would be nearly impossible for the president to get around. To impact the day-to-day conduct of the US in Afghanistan, Congress can (and does) use a combination of policy authorizations, appropriations, media exposure, and informal pressure.

Since the funding route is the easiest, it's difficult to see why Congress would choose a more constitutionally questionable method (e.g. repealing it's post-9/11 authorization). Doing so would have the chance of causing a constitutional crisis between the two branches, with the president relying on Commander-in-Chief powers for a previously authorized engagement and Congress relying on it's power to declare (and arguably "un-declare") war. Plus, it's difficult to imagine a Democratic Congress challenging President Obama in that manner.... politics, politics, politics...

Beau said...

Also, this is a great article in the American Prospect by Julian Zelizer about how Congress used legislation to get the US out of Vietnam. Quite applicable to the current situation....

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