Posted by: bridget | 29 January 2007

War Powers

The NY Times opined that Congress has more war powers than are explicitly granted to it by the Constitution.   Its argument is  essentially that the Framers were wary of giving too much power to the Executive in a time of war, so, despite the fact that the Constitution is silent on the subject of Congressional action after declaration of war, they have more power than the President.

Art. I states, in relevant part, that:

“”The Congress shall have the power… To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces….”

Art. II states, in relevant part, that:

“The executive power shall be vested in a President of the United States of America… The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;”

Congressional power to restrict war takes several, albeit limited forms: to deny the President’s wish to declare war and to cut off funding to the Army, although not the Navy.  (Rules regulating land and naval forces would presumably be martial law, not whether our troops can be in Iraq or not.)  Article I was written to be a very limited enumeration of rights, while Art. II gives the Executive a very broad leeway: he shall be the commander in chief of the armed forces.  The sole Congressional remedy is to cut off funding for the army; the fact that such is political suicide does not mean that the legislative branch may acquire extra-constitutional rights.

(Note that this issue was discussed, in brief part, at the Federalist Society’s Saturday event.)

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