OPEN UNIVERSITY JANUARY 14, 2007
by Jacob T. Levy
I'd be very eager to hear the thoughts of cobloggers Sandy Levinson and Cass Sunstein on the debate over whether Congress may block the supposed "surge" or troops to Iraq ("supposed" because the number of troops being sent is lower than what any surge proponent estimated was the bare minimum to qualify, until a few weeks ago). Joe Biden has said a number of times that he doesn't think Congress has much scope to act, and has been widely criticized among war skeptics and opponents for saying so.
Sandy and Cass have thought a great deal more about separation of powers issues during wartime than I have. I take it that they don't agree with each other in any general way--Cass has been more sympathetic than most other prominent legal liberals to at least some of Bush's claims about the scope of executive power, while Sandy's been an important critic. (Both their views are more complicated than 'fer' or 'agin', of course.)
I've generally been of Sandy's mind on this kind of thing. No matter what the plausibility of the administration's claims taken one at a time, they multiply with each other in ways that make me inclined to reject the whole package. The administration retains the right to interpret away enacted and signed laws that impair the president's power; not to disclose its interpretations of the law; to hold prisoners without either the protections of the criminal law or the protections of the Geneva Convention, in undisclosed locations and for undisclosed reasons, etc. etc., adding up to an purported legal ability to hold and imprison in secret, using secret interpretations of laws, on the basis of secret evidence gathered in secret ways, subject to punishments that may not be constrained or inquired into by any outside body, and without disclosure even to the prisoner of what either the legal or the factual basis for the detention is. The historical core of the rule of law and constitutionalism was to reject that vision of executive power, and I cannot believe that the founders somehow recreated it by vesting "the executive power" in the president.
And yet, whatever else the president may be, he is the commander-in-chief. If we accept that Congress' authorization of force against Iraq was the constitutional equivalent of a declaration of war (as de facto it seems we must--insisting on formal declarations of war has apparently become the constitutional equivalent of grammarians insisting on "thou" instead of the singular "you") then I think it pretty well ended Congress' involvement in military decisions. Moving troops around among the places where they're legally authorized to be is central to the role of commander-in-chief, isn't it?