214 Massachusetts Avenue, NE

Washington, DC 20002

20 March 2007

The Honorable Nancy Pelosi Speaker U.S. House of Representatives Washington, DC 20515	The Honorable John Boehner Minority Leader U.S. House of Representatives Washington, DC 20515
The Honorable Harry Reid Majority Leader U.S. Senate Washington, DC 20510	The Honorable Mitch McConnell Minority Leader U.S. Senate Washington, DC 20510

Re: Constitutional Problems with Congress’s Attempted Micromanagement of the War

Dear Congressional Leaders:

As lawyers and law professors specializing in the Constitution and national security, we write to express our growing concern with the potential abuse of Congress’s authority in attempting to unreasonably interfere with the President’s constitutional authority to make strategic military decisions during wartime, including when to deploy or withdraw soldiers in his command from different battlefields. The theory underlying earlier nonbinding resolutions was both harmful to the war effort and constitutionally erroneous. Certain provisions of the pending supplemental appropriations bills are even more harmful. They not only proceed from an unconstitutional premise; they are unconstitutional in themselves.

We do not deny that Congress has the power to cut off all supplemental funding for the war, and that it has many other constitutional powers relating to war. The Constitution grants both Congress and the President considerable authority over war. To successfully win a protracted war, the Framers' design requires some concerted action by both political branches. The Framers created an energetic President who could execute strategic decisions unhindered by legislative direction or legislative committee interference. But in the long run, a determined Congress has sufficient power to end any war, although it must use its legitimate powers and then take responsibility for doing so.

Though Congress is limited to those powers specifically enumerated in Article I, those powers are not insubstantial. Some of the most important are:

• The power to raise and support a standing army and navy.
• The power to "declare war," which clarifies certain international rights and obligations during an ongoing hostility.
• The power to define whether, and under what circumstances, the President may call forth the militias of the several states into national service.
• The power to define and punish the offenses against the laws of war.
• The power to make general rules of military justice for the armed forces.

As broad as these powers are, however, they do not include seemingly lesser ones that Congress may desire to exercise. For example, during the Constitutional Convention, the Framers changed the language of Art. I, sec. 8, cl. 11, in part to make clear that the President may "engage in war" when necessary, whether Congress has declared one or not. Moreover, the power to make rules for "the Government and Regulation" of military forces is the power to enact a general set of laws of military justice, analogous to the Articles of War enacted by the British Parliament. There is no convincing legal support that Congress may use this power to dictate operational commands.

Under any of its powers, Congress simply cannot micromanage the conduct of the war. Yet, Congress increasingly is attempting to do just that. Congress may: (1) reduce the overall size of the standing army, navy, or air force; (2) end funding for ships, aircraft, or other weapons systems; (3) refuse to confirm military commanders who share the President’s plans for achieving victory; or (4) refuse to enact supplemental appropriations that would be used to fund extended engagements abroad. Since protracted modern wars require supplemental appropriations far exceeding the military's baseline budget, mere inaction by Congress is all that is necessary to defund most such engagements.

Nevertheless, Congress cannot place unconstitutional timetables or conditions on the President’s military command, whether in a particular theater of war or otherwise. Article II, Section 2 of the Constitution states, "The President shall be Commander in Chief of the Army and Navy of the United States...." Many of the questionable legislative provisions proceed from a mistaken understanding of that phrase. Some argue that making the President the Commander in Chief means nothing more than that the military shall have a civilian commander and, thus, that Congress can command the President in his command. This would render the Commander-in-Chief power completely empty, or at least impose no limitations on how Congress could alter it.

The constitutional Separation of Powers would collapse if any one branch had the power to define the powers of the other branches, rather than the power to check the other branches with its own powers. The Commander-in-Chief power can no more be defined by Congress than the President can unilaterally define what the Congress's spending power means (e.g., by issuing line item vetoes or impounding funds that are otherwise lawfully appropriated). The Commander-in-Chief power does not trump any of Congress's specifically enumerated powers, but it does necessarily include the power to decide which soldiers at his disposal to detail to different stations or battlefields, which to hold in reserve, and precisely when to withdraw any of those in his command from particular theaters of war.

In short, Congress cannot dictate (through funding conditions or otherwise) when the President should commit troops to battle and when he must withdraw them. Purported conditions on military funding that substantially interfere with the President’s deployment decisions are unconstitutional. Any attempt to impose unconstitutional benchmarks or similar requirements on the Executive's war-making power also would be void from the inception.

Apart from the constitutional problems with the Congress’s attempts to micromanage the President’s prosecution of the war, the signal sent to the rest of the world would be terribly counterproductive. It is not unconstitutional for Congress to send other signals that strengthen the resolve of our nation’s enemies, including that it wants to undercut the President’s prosecution of the war and that it may even cut off funding in the future. But it is hard to imagine what good could come from sending such a signal. Nor would the ill effects be completely ameliorated by options the President may have to disregard unconstitutional provisions in a larger measure. This war should not be an occasion for political posturing.

While not unprecedented, attempted interference with the President's operational war decisions are still inappropriate and irresponsible. They also are inconsistent with the responsibilities that Congress shares with the President for the success of any military action in which the nation is engaged. Indeed, Congress's independent authority to terminate a war with its own powers is what renders so problematic its public criticisms of, and attempted meddling with, the President's independent authority to execute his war plans. Congressional timetables and other conditions on military funding violate the comity Congress owes the President's exercise of his constitutional duties; attempt to evade the responsibility Congress shares with the President for the war; and betray the duty Congress owes to the nation not to needlessly make victory more difficult.

For all these reasons, we urge you to eliminate any unconstitutional timetables, benchmarks, or other provisions designed to tie the President’s hands regarding where and when he may deploy troops under his command.

Sincerely,

Edwin Meese III

U.S. Attorney General (1985-88)

The Heritage Foundation

Mike Carvin

Partner, Jones Day

Lee Casey

Partner, Baker & Hostetler LLP

Charles Cooper

Partner, Cooper & Kirk, PLLC

Dr. John C. Eastman

Henry Salvatori Professor of Law & Community Service

Chapman University School of Law

Director, The Claremont Institute Center for Constitutional Jurisprudence

Todd Gaziano

Director, Center for Legal and Judicial Studies The Heritage Foundation

Douglas W. Kmiec

Chair & Professor of Constitutional Law Pepperdine University School of Law

Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice (1988-89)

Nelson Lund

Patrick Henry Professor of Constitutional Law and the Second Amendment

George Mason University School of Law

Gregory E. Maggs

Professor of Law

George Washington University Law School

Andrew C. McCarthy

Director, Center for Law and Counterterrorism Foundation for the Defense of Democracies

Ron Rotunda

The George Mason University Foundation Professor of Law

George Mason University School of Law

John Yoo

Professor of Law, Boalt Hall School of Law University of California, Berkeley

*Titles are for identification purposes only.