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.

I thought this was a very good speech. There were really no parts that I thought were lacking in factual correctness or innacurracy. Obama told the American people the truth and that is his highest responsibility. He did not attempt to play on the emotions of American as was evident in every single George W Bush speech. Their were notable invitees but he did not feel the need to fill gaps in his speech by referring to them. This was a smart speech that treated the American like adults who are capable of hearing bad news as long as it comes with some hope for tomorrow. Bravo Obama and the behind the speech staffers who really make this happen