Can Congress Make a President Step Up a War?

59 Pages Posted: 13 Jul 2013  

Charles Tiefer

University of Baltimore - School of Law

Date Written: 2011

Abstract

May Congress use its appropriation power to direct the President to step up a war? When Congress uses its spending power for intensifying a war-stepping it up, pressing it more aggressively-against the resistance of a "less hawkish" Commander in Chief, who wins?

This Article posits differences of view in the 2010s toward the Afghanistan war as a way to revisit, generally, the history of constitutional disputes over war-related appropriation riders. Describing the differences in very simplistic terms, a "hawkish" opposition in Congress may gain political strength at any time, such as in 2010 or 2014, not necessarily because of the war issues but perhaps from running on a political platform in which a "hawkish" view of the war is one of the platform's explicit or implicit planks. An elected "hawkish" majority in Congress may want to use tougher measures in the theatre of war than the President. It would enact measures past the bounds of policy set by the President as its way to step up the war.

This Article does not look at such hypotheticals, of course, to discuss their policy implications. Rather, the discussion seeks to develop the analytical structure about whether a "hawkish" Congress may constitutionally enact various kinds of provisions. The provisions at issue have been chosen so as not to aim at restricting war, rather, these make a reluctant Commander in Chief step up a war.

Accordingly, Part II of this Article provides the constitutional history of Congress's war appropriation riders. It develops the key background events, shedding a special light on the Framers' intent in wording the potent "No Appropriation" provision in the negative so that Congress would have a great power to limit, not to force, action. Proper appropriation riders derive great support from the plenary nature, venerable history, and contemporary significance of Congress's power of the purse.

Part III of this Article uses the just-summarized constitutional history to set up and to apply a basic structure to categorize congressional appropriation riders. Although the main focus is to contextualize provisions for stepping up a war, the approach also yields insight regarding all war-related appropriation riders. In light of history, whether provisions are presumptively unconstitutional depends on whether the provision goes to the very core of the Commander in Chiefs more "central" concerns in the war zone: command, disposition of forces, and military
campaigns.

Part IV proceeds to apply the analysis to three hypothetical measures, one in each of these categories that Congress might enact years from now in the Afghan conflict. First, Congress may enact a provision that directs the President to make an armed incursion into "border sanctuaries" within Pakistan. Such congressional action would collide with the core of the Commander in Chief's central issue of Campaigning.

The next Section of Part IV studies a congressional mechanism for intrusively overseeing command- a special oversight committee. This Section delves into the under-appreciated history of congressional wartime inquiries. It compares the infamous joint committee that oversaw the conduct of the Civil War with the praiseworthy major oversight inquiry at the start of the Korean
War.

The third Section of Part IV analyzes a hypothetical provision as to "shared" issues of Congress and the President, in contrast to the prior examples that affect the "central" Commander in Chief
issues. Namely, this Part considers a congressional provision mandating a poppy eradication program. Also, this Part reviews the complex history of military impoundments.

Part V, this Article's conclusion, discusses how consideration of the issues surrounding "more hawkish" congressional action shakes up habitual ways of thinking. This approach invites observers to rethink their settled presumptions. The unspoken assumption has been that a strong Commander in Chief power invariably drives an unwelcome expansion of war. To think otherwise opens new frontiers for study of the war power.

Keywords: U.S. Congress, President, appropriation power, spending power, war-related appropriation riders, presidential politics, war powers, separation of powers

JEL Classification: H56, K10, K19, K39, K49

Suggested Citation

Tiefer, Charles, Can Congress Make a President Step Up a War? (2011). Louisiana Law Review, Vol. 71, 2011, pp. 391-449. Available at SSRN: https://ssrn.com/abstract=2293151 or http://dx.doi.org/10.2139/ssrn.2293151

Charles Tiefer (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States

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