The Plank

Legal Nonsense


The Washington Post editorial page, which championed the war in Iraq, gives top billing (upper-right hand of the page) to two former Justice Department officials from the Reagan and George H.W. Bush administrations who argue that it is unconstitutional for the Democrats to introduce a resolution condemning the Bush administration's strategy in Iraq. David B. Rivkin Jr. and Lee A. Casey don't just oppose the resolution; they oppose introducing it and taking a vote on it.

Their argument consists of the kind of legal sleight-of-hand that has led many distrust Washington lawyers. They don't exactly say that introducing a non-binding resolution would be illegal under the Constitution, but that it is against the "constitutional culture" and the "constitutional fabric." "Efforts by some congressional Democrats to chastise the president through a resolution of 'no confidence' in his Iraq policy have no place in our constitutional culture," they write. They give the Democrats a choice of cutting off funding for U.S. operations in Iraq or shutting up--the same alternatives that Senator John McCain has proposed.

First of all, the Supreme Court has never ruled that non-binding resolutions--whether on foreign or domestic policy--are unconstitutional. They have been part of the way Congress conducts itself for many years. Secondly, from what I could discover, Rivkin and Casey did not make similar arguments when Republicans offered non-binding resolutions criticizing the Clinton administration or applauding the Bush administration. In Oct. 1993, Senate Minority Leader Robert Dole and Republicans passed a "sense of the Senate" resolution against the Clinton administration using force in Haiti or Bosnia without Congressional approval.

In February 1998, Senate Majority Leader Trent Lott and other Republicans (including John McCain) introduced a resolution urged the administration to take "all necessary and appropriate actions" against Saddam Hussein's Iraqi government. Other Republican resolutions on Iraq followed. Then just last year, House Republicans passed a non-binding resolution against setting "an arbitrary date to withdraw" American forces from Iraq. Did Rivkin and Casey complain? Or McCain. I looked for statements from them protesting this intrusion on the president's war-making powers, but could not find any.

--John B. Judis

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