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Legal Scholars: Congress Has Constitutional Power to Limit Scope of Iraq War & Block Escalation

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President Bush delivers his State of the Union address tonight, where he is expected to restate his intention to escalate the war by adding over 21,000 troops to Iraq, regardless of whether Congress supports him or not. However constitutional law experts say Congress has the power to cap the number of soldiers sent to fight and to limit the use of appropriated funds for the war. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: President Bush delivers his State of the Union address tonight, where he is expected to restate his intention to escalate the war by adding over 21,000 troops to Iraq, regardless of whether Congress supports him or not.

Congressional Democrats and Republicans have already spoken out against the president’s plan. Yesterday, Republican Senator John Warner, a member of the Armed Services Committee, who until recently had been a staunch supporter of the war, announced plans to introduce a resolution calling escalation “a mistake.” Some have questioned whether Congress has the legal constitutional authority to affect the plan’s implementation.

Recently, 21 legal scholars from law schools around the nation wrote a letter to the House and Senate leadership arguing Congress does have the constitutional authority to limit the scope of war. According to the scholars, Congress not only has the power to cap the number of soldiers sent to fight, but also to limit the use of appropriated funds for the war.

With us now is Professor David Golove. He is the Hiller Family Foundation Professor of Law at New York University School of Law, one of the signatories to the letter to the congressional leaders. Welcome to Democracy Now!

DAVID GOLOVE: Thank you.

AMY GOODMAN: It’s good to have you with us. Explain what you have written to them.

DAVID GOLOVE: Well, there had been some discussion and public debate that casts some doubt upon whether Congress had the powers that you specified to limit and control the president in conducting the Iraq War. And we were all unified in thinking that that was incorrect, as an understanding of U.S. constitutional law, and that it was on such an important issue it needed to be clarified as quickly as possible. So we wrote the letter to members of Congress to let them know our views about that.

AMY GOODMAN: Now, it’s not so much the Republicans or President Bush who’s saying, “You can’t stop me.” It’s the Democrats who are saying, “Well, we are very limited here in what we can do. This is really the president’s war.”

DAVID GOLOVE: Well, I hope that that’s not entirely true. I know that some statements by some senators and members of Congress were to that effect. I hope that isn’t a general view in the Democratic Party. And I haven’t heard it said quite as frequently in the last period of time. So I’m hopeful that Congress is more aware of its own powers than those statements may reflect.

AMY GOODMAN: So explain exactly what Congress can do.

DAVID GOLOVE: Well, you know, there’s been so much discussion about the relative powers of Congress and the president with respect to war and the conduct of war in the last five or six years, since 9/11. There’s a kind of myopia about the Constitution, which has emanated, I think, from the executive branch during this period of time. The executive branch sees only the commander-in-chief clause, which makes the president the commander-in-chief of the armed forces.

But, in fact, the Constitution gives vast war powers to Congress. It’s very, very explicit in the article of the Constitution which gives Congress powers. Congress has the power to raise money, borrow money to provide for the common defense. It has the power to raise and support armies. It has the power — these are all explicit powers — the explicit power to make rules for the government of the land and naval forces. It has the power to define offenses against the law of nations, which includes the laws of war. It has, most famously of all, of course, the power to declare war, as well as the power to issue letters of mark and reprisal, which is a kind of archaic practice now, but dealt with privateers during the 18th and the 19th century, which was a very important form of limited warfare. It has the power to make rules for captures on land and sea. All of these powers and others are very explicitly granted to Congress, and it should be very clear that the commander-in-chief power is not the only clause in the Constitution which deals with war powers.

I’m going to add one other thing, which is that the administration is very myopic even about executive powers, because although the president is made commander-in-chief, he’s also, very explicitly in the Constitution, enjoined faithfully to execute the laws, and that does not mean disregarding the laws that Congress chooses to pass. So I think it’s important to bring a fuller view of what the Constitution itself says, let alone the history of its interpretation, to the public and to public officials in Congress.

AMY GOODMAN: Professor Golove, you have Nancy Pelosi, the House speaker, saying that cutting off the funds is off the table, that when soldiers are sent in harm’s way, you don’t take away money from them.

DAVID GOLOVE: Well, to the extent that those are policy judgments or they’re political judgments, that the American people might misinterpret Congress’s effort to limit funds to the military as in some way undermining U.S. soldiers, and that that puts Congress in a bad light in the political realm, I don’t think the Constitution says one thing or another. It reflects that funding may not be the most effective mechanism for checking executive conduct in war than maybe others that need to be in place, as well. That’s certainly one that the Constitution creates for Congress, but it is one which historically has become difficult to use.

Now, remember, when the Constitution was passed, there was no standing army. The idea of a standing army was anathema to the founding generation and for many generations after that. So when Congress was given the power to fund the military, to raise and support armies, that meant the president wouldn’t have military forces at his disposal to use. He would have to go affirmatively and get Congress to raise and support an army for him to use in a foreign adventure of some kind. That meant the check was very, very significant on the president. Today, where there’s a standing military of a huge size, the power seems to be much weaker, because it involves taking money from the military when it’s actively engaged in military confrontation.

AMY GOODMAN: Could Congress pass a law that says we will — to do something to stop these soldiers from being sent?

DAVID GOLOVE: Absolutely — as a matter of constitutional power, I believe, as well as the other signatories to the letter, and I think very, very widely in the world of constitutional scholars and constitutional lawyers, Congress has plenary authority, virtually, to pass laws that restrict the scope of war and conflict in which the president engages. So it’s not a question of constitutional power at all. And when some senators or congressmen suggest that the reason they might not be able to adopt measures which block or limit the president’s ability to escalate the war in Iraq, and they try to place that on constitutional grounds, I think they’re without any foundation for their constitutional argument. Now, there may be political reasons why they think that’s not a good policy for Congress to pursue, but that’s, of course, a wholly different matter than whether they’re constitutionally compelled to let the president do whatever he wants.

AMY GOODMAN: Do you see any promising movement in Congress right now?

DAVID GOLOVE: Well, I don’t know quite how to answer that question. Now, clearly there are resolutions by prominent members of Congress and the Senate that are being introduced now. Now, remember, from a strictly constitutional point of view, these so far, for the most part, are nonbinding resolutions, at least the main ones that we are hearing about and reading about in the press. And if they are nonbinding, then they will not prevent the president, even legally — the president will be clearly within his constitutional authority to disregard those resolutions and go ahead with his plans. Congress has authorized this war and has placed no limits, legally binding limits, on the number of troops the president can use in this war. And until they do, the president is within his legal rights to send more troops to Iraq. So Congress has to come forward and pass a binding resolution, not just a nonbinding resolution. The president isn’t bound by nonbinding resolutions.

AMY GOODMAN: And an issue of setting a time limit?

DAVID GOLOVE: That’s also something that’s within, I think, Congress’s constitutional authority. Time limits are, again, like cutting off funds, they’re a treacherous area for Congress, because they predict the future, they predict future conditions, they demand that very definite steps be taken when the conditions that will exist on the ground at that moment aren’t entirely clear. So Congress has always historically been quite weary of adopting those kinds of — during the Vietnam War, at some point, it became the only mechanism left for Congress, and they did do it.

AMY GOODMAN: So you could have the very senators, for example, who voted for authorization of war, who are now opposed to it, and say that. I mean, you have people like John Kerry and Edwards, the presidential and vice-presidential candidates for the Democratic Party, now saying that they were wrong to authorize war. Hillary Rodham Clinton hasn’t said that. But they could introduce a resolution to stop the authorization of war, a binding resolution.

DAVID GOLOVE: They could, indeed. And they could do something short of that, which would be a binding resolution that limits the number of troops that can be put into Iraq, that specifies conditions that need to be met before additional troops are sent. So if the Congress believes that the Iraqi government should be meeting certain benchmarks before the U.S. sends additional troops to Iraq, the Congress can pass a resolution, a binding resolution, that specifies no further troops could be sent to Iraq until certain conditions are met by the Iraqi government.

AMY GOODMAN: Professor Golove, you’re also an expert on signing statements, and I wanted to ask you about a headline today, the Bush administration being asked to release more information about the president’s assertion that he has the authority to open and read the mail of U.S. citizens without a warrant. Last month, President Bush issued a signing statement that claimed he could ignore a new law that expressly prohibits the opening of first-class mail without a warrant. First, quickly explain the signing statement, and then respond to that.

DAVID GOLOVE: Yes. Presidential signing statements are not a practice that President Bush and his administration developed first. It’s something that goes back through several administrations, and it has antecedent roots going back very far in constitutional history. But President Bush has used them — you know, and the magnitude of his use of them has been beyond what any other president has ever done by, you know, many orders of magnitude.

They are statements which the president issues. They have no formal legal effect in the constitutional order. They’re not binding law, although they may be binding on lower executive branch officials, who the president has authority over. But they’re not binding legal documents, but they state the opinion of the president and the intentions of the president, with respect to the law which he’s signing. And the president has used those to suggest that he thinks many, many laws that Congress has passed over the past six years are unconstitutional in a huge variety of respects, mostly in that they impose some kind of limitations on executive power. So he did that again with respect to the statute dealing with the mail and searching the mail.

AMY GOODMAN: So he signs the law, and then he quietly signs a signing statement that says he doesn’t have to necessarily abide by this.

DAVID GOLOVE: That’s right. And it’s very ironic, because, of course, he has the option, which the Constitution explicitly gave him, to veto the laws if he thinks they’re — the very purpose, the core purpose of the veto, not the only purpose, but the core purpose was to enable the president to veto laws that he thought were unconstitutional, particularly those that intruded on his own authority. But this president has generally avoided, almost entirely avoided, vetoing bills, but instead signs them, makes them law, but then issues a signing statement saying he thinks that they’re unconstitutional and he doesn’t necessarily intend to comply with them.

AMY GOODMAN: And so, very quickly, what does this mean for surveillance of first-class mail in this country?

DAVID GOLOVE: Well, with all these signing statements, they’re merely — they’re a shot across the bow. We don’t know what they mean, in terms of what the president will actually do and not do. He doesn’t tell us. I mean, that’s part of the ambiguity and obfuscation, is that he’s claiming an authority not to follow the law, but he doesn’t say he won’t follow the law. So, you know, now the administration has announced it will follow the FISA law, the law on foreign surveillance, which up 'til now the president has not been willing to follow. So sometimes he follows the laws, even though he thinks they're unconstitutional, sometimes he doesn’t. So we don’t know the answer, as to what will actually happen.

It’s worth pointing out that the claim that Congress has no authority to pass laws that deal with electronic surveillance or with mails and so on, that those are with — again, these are an area that’s fully within the discretion of the executive, exclusively within the discretion of the executive, Congress has no right to regulate. That’s the claim being made in these presidential signing statements.

We can distinguish between two types of cases dealing with war issues. One is where Congress passes laws that regulate the conduct of war vis-à-vis the enemy outside the United States, alien enemies outside the United States.

AMY GOODMAN: We just have 30 seconds.

DAVID GOLOVE: The other is where they pass laws that deal with the rights of American citizens and their liberties. Now, when they’re acting in that second category, Congress is in its strongest field, where Congress is actually protecting the American citizenry from potentially overreaching by the executive, which then violates civil liberties in the United States. That those are being challenged is, I think, the disturbing trend.

AMY GOODMAN: Professor David Golove, I want to thank you very much for being with us, a law professor at New York University School of Law. Thank you.

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