War de-authorization

By DOUGLAS COHN
and ELEANOR CLIFT
WASHINGTON — It was 1944 just before the D-Day invasion of Normandy was about to be launched and Congress stepped in to cut off funding for World War II. The rationale was straight forward. An amphibious attack against Gen. Irwin Rommel’s (of Desert Fox fame) defenses on the coast of France could prove to be extremely costly in lives and treasure. Why not let the Communists and the Nazis fight it out on the Eastern Front in a war that was guaranteed to mutually assure the destruction of both (Congress was prescient in the use of MAD strategy years before it would come into vogue as an East-West Cold War nuclear term).
However, President Franklin Roosevelt persisted. The war must go on, and Congress was merely depriving the troops of the equipment they needed to fight it. The president, not Congress, makes grand strategy. Besides, Congress had actually voted for the war after the December 7, 1941, Japanese attack on Pearl Harbor. True, that vote was for war with Japan, but Germany quickly came to the aid of its Japanese allies and declared war on the United States.
The president went over the heads of the senators and representatives and proclaimed to the public their lack of patriotism. Congress countered, claiming that the president was unpatriotically killing America’s young by callously continuing such an unnecessary war.
It all came down to strategy and the Constitution. Why had the Founding Fathers given Congress the power of the purse unless it was to be used to end a war it had declared? Why had the Founding Fathers given the president the power to execute a war once Congress had declared it if not to see it through to a successful conclusion? The answer was the historically quaint idea that wars are concluded by treaties, and only Congress was given the power to approve such diplomatic instruments. Of course, this scenario did not actually happen in 1944, but the arguments concerning all wars are brought into focus by focusing them on America’s last “Good War.”
The War in Iraq was authorized by Congress; the Iraqi government of Saddam Hussein was brought down, and the war against a variety of insurgents began, leaving no entity with which the United States could sign a peace treaty. Hence, the looming constitutional crisis. The Founding Fathers never intended to give the president continuous and unlimited war powers. Neither did they want Congress to interfere with the conduct of a war. It is the job of the executive branch to execute strategy.
Enter the power of the purse. Short of an impeachment trial, it is the only tool Congress has to terminate a war in the absence of a peace treaty. Clearly this is a flaw in the Constitution. Only Congress can declare war, and only Congress should have the power to continue a war. Just as clearly, Congress has no business interfering with the conduct of a war. That is reserved to the executive branch.
With these prerogatives in mind, Congress should put to the vote a de-authorization bill as a means of rescinding a declaration of war or a war authorization bill. If it fails, the president would be free to continue the conflict. If it succeeds, the president may say that such a de-authorization bill has no power or he may veto it. The other route, and a route that also gives power to de-authorization, is to go back to the original idea and cut off funding. In this case, it would not be subject to a veto because Congress can cut off funding by not acting, by not passing a funding bill.
ublished in The Messenger 11.26.07

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