74 Pages Posted: 3 Oct 2007 Last revised: 6 Nov 2007
There are some who continue to believe that Congress can recapture its war power by refusing to pass future supplemental appropriations to support the war but such a view is pure fantasy if we simply go on as we have and conclude that the President is the 'decider' because Congress has given to the President the authority to be the 'decider' on the question of war and peace. The power of the purse is not likely to be effective as a limit on the Chief Executive so long as he is exercising his duty to 'enforce law.' The other tried but failed alternative of enactment of supplemental appropriations with a legislative rider calling for a date certain for the recall of all troops from Iraq is also highly problematic. The problem is that the President has vetoed the legislation and there is no two-thirds majority needed to override. Even if Congress could override a presidential veto the President is still not likely to go along with it; he will argue that he alone has the authority to determine how troops should be deployed during war. It is the presidential claim to apparent constitutional authority to wage war that ultimately ties the hands of Congress on the war. Appropriation measures are an indirect means for expressing disapproval of a war because it sends a misleading and potentially damaging message - Congress doesn't want to support the troops, but it is unwilling to stop the war. It would be better if Congress faced up to its constitutional responsibility it ducked when it authorized the war in 2002. Indeed, forthright action of by Congress on the war issue might galvanize public opinion in support of congressional action. The question that has been ignored but until now is whether the 2002 AUMF that purported to give President Bush the power to start a war against Iraq was a legally effective authorization. This Article seeks to make a contribution to the war powers debate by expanding on an argument once made by the late John Hart Ely for support of the view that the 2002 AUMF fails to satisfy the constitutional test for a valid war authorization.
Keywords: war powers, president, congress, appropriations, Iraq
JEL Classification: K10, K30
Suggested Citation: Suggested Citation
Minda, Gary, Congressional De-Authorization of War and the Presidential Veto: 'The Catch-22 of the Iraq War'. Wayne Law Review, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 89. Available at SSRN: https://ssrn.com/abstract=1018481