OPEN UNIVERSITY JANUARY 16, 2007
by Sanford Levinson
I have only just seen Jacob Levy's "invitation" to weigh in on the ability of Congress to defund the proposed "surge." On this matter, I see nothing to disagree with in Cass Sunstein's thoughtful posting. I do think, though, that there are probably insurmountable political obstacles in the way of an effectve cutting off of funding (assuming, for the sake of argument, that this is wise policy): First, obviously, it would have to get through both houses of Congress. There are no guarantees with the House, but the Senate is almost infinitely more difficult because of the possibility of filibuster by Republicans. And, even assuming that a bill could be passed, it would be subject to the veto power, which would surely be used. (Readers of TNR know of my belief that the veto power is an unwise part of the Constitution, but that is altogether different from arguing that it is "unconstitutional." Moreover, given my own belief that the president should be able to veto legislation on constitutional--rather than policy--grounds, I have relatively little doubt that the Bush administration could come up with a good-faith argument, along lines set out by Cass, that such a selective defunding would be unconstitutionial as well as unwise, even if many of would disagree with such an argument.)
One might suggest that Congres go "on strike" by refusing to allocate any funds at all to the DOD, but that would clearly be both politically irresponsible in the extreme and futile to boot, inasmuch as one of the respondents to Cass's posting notes that Congress has already given billions of dollars to the DOD for use in the coming year.
For me, this only corroborates my own analysis that a severe defect of the Constitution is that we cannot evict a president from the White House for incompetence. In the absence of such a possibility, Bush indeed retains many prerogatives to "decide" issues, especially in the realm of foreign policy and the conduct of the war, alas.