Journal of National Security Law & Policy, Vol. 6, No. 1, 2012, pp. 131-166.
36 Pages Posted: 27 Sep 2014
Date Written: 2012
In the simplest case: Congress declares war, and does not intrude on the President's solo decision about when the troops come home. However, in our time, long wars, such as in Afghanistan and Iraq, occur with great tension between the two elected branches of government over the pace of a drawdown. Sometimes it may be a hawkish Congress that disagrees with a President reluctant to continue the war at full troop levels. To find a joint way to draw down the American troops in the war zone, they may seek congressional mechanisms to resolve their differences with interactive processes. Then, constitutional issues arise as to whether a congressional mechanism may use a legislative veto - authorization for a drawdown with a reservation of power for a vote by the two Houses of Congress - so as to let the President draw down troop levels while reserving congressional power to stop that draw down.
Part I looks at the first issue, as to a hawkish Congress outright stopping a draw down by legislation. This is different from the provisions, analyzed much more often, by which a Congress opposed to hostilities may deny the President the authorization to fight. Weighing the arguments, the better view surveys the diverse examples of history, and it treats, as valid, congressional enactments that stop a troop drawdown out of the war zone. Because some of the issues about a hawkish Congress's powers were developed in a previous article by the author, readers who want further treatment of the issues in Part I should look at that previous article. Such readers would be disappointed if seeking in Part III more treatment of the same issues about the reluctant President and the hawkish Congress as in Part I.
Rather, Part II looks at the different question: May Congress take impactful steps by enacting a "concurrent resolution mechanism," with the President's support, for a potential later bicameral resolution stopping a drawdown - a mechanism the critics would call an unconstitutional "legislative veto"?
Part II starts with the clash of functionalist and formalist approaches to separation of powers: the functionalism of Youngstown Sheet & Tube Co. v. Sawyer vs. the formalism of Chadha. A close reading of Chadha shows it does not fully resolve the role of concurrent resolution mechanisms in war powers. Moreover, many academics concur that Chadha does not bar such mechanisms in war powers.
Keywords: war powers, President, Congress, legislative veto mechanism, authorization to fight, drawdown, bicameral resolution, separation of powers, legislation,
JEL Classification: H56, K19, K39, K41, K49
Suggested Citation: Suggested Citation
Tiefer, Charles, Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War? (2012). Journal of National Security Law & Policy, Vol. 6, No. 1, 2012, pp. 131-166.. Available at SSRN: https://ssrn.com/abstract=2501658 or http://dx.doi.org/10.2139/ssrn.2501658