Can Congress Make a President Step Up a War?

• Author: Charles Tiefer
• Position: Commissioner, Commission on Wartime Contracting in Iraq and Afghanistan; Professor, University of Baltimore Law School
• Pages: 391-449

Can Congress Make a President Step Up a War?

Charles Tiefer

I. INTRODUCTION

May Congress use its appropriation power to direct the

President to step up a war?

1

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?

The subject of spending provisions, also called appropriation

riders, that limit the scope or duration of a war has certainly

received commentary.

2

By contrast, no one has discussed

Congress‘s use of its spending power to compel the President to

step up action in the war zone.

3

Yet constitutional collisions about

stepping up wars do occur and will occur again. Moreover, this

new subject stimulates a reconsideration of the constitutional

Copyright 2011, by CHARLES TIEFER.

 Commissioner, Commission on Wartime Contracting in Iraq and

Afghanistan; Professor, Unive rsity of Baltimore Law School; B.A., summa cum

laude, Columbia College, 1974; J.D., magna cum laude, Harvard Law School,

1977. This Article represents solely t he view of its author alone and not those of

the Commission or any other commissioner. Further information on this

statutorily cr eated Commission and its televised hearings may be found on its

website, http://www.wartimecontracting.go v. The author appreciates the special

assistance of Michael Glennon and Peter Raven-Hansen and the assistance of

William C. Banks, Neal Devins, Louis Fisher, Christopher Ford, and Jules

Lobel. The responsibility for all views and errors is the author‘s.

1

. For general treat ments of the subject, see WILLIAM C. BANKS & PETER

RAVEN-HANSEN, NATIONAL SECURITY LAW AND THE POWER OF THE PURSE

(1994); LOUIS FISHER, PRESIDENTIAL WAR POWER (2d ed. 2004); THOMAS M.

FRANCK ET AL., FOREIGN RELATIONS AND NATIONAL SECURITY LAW: CASES,

MATERIALS AND SIMULATIONS (3d ed. 2008); MICHAEL GLENNON,

CONSTITUTIONAL DIPLOMACY (1990); LOUIS HENKIN, FOREIGN AFFAIRS AND

THE UNITED STATES CONSTITUTION (2d ed. 1996).

2

. Four years ago, the author wrote about appropriation riders to restrain or

end a war, with citations to previous studies of the subject. Charles Tiefer, Ca n

Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT‘L L. 291 (2006).

3

. That is not to say there is no literature on kindred subjects, e.g., when

Congress may enact mandatory appropriations that a President must spend. In

addition, there has been one recent article mentioning one particular, relatively

obscure way that Co ngress might get around Presidents who do not wage a

particular kind of war. William Young, Note, A Check on F aint-Hearted

Presidents: Letters of Marqu e and Reprisal, 66 WASH. & LEE L. REV. 895, 911 –

12 (2009).

392 LOUISIANA LAW REVIEW [Vol. 71

history of appropriation riders about wars generally, which makes

it both a relevant and an important topic.

4

As a commissioner on the federal Commission on Wartime

Contracting in Iraq and Afghanistan established in 2008 by

Congress, the author has been immersed in the practical interactions

between congressional legislation and the conduct of the

Afghanistan war. Such experience generates realistic hypotheticals

demonstrating how this long, frustrating war may trigger future war-

powers clashes in which Presidents get pressed to act ―more

hawkishly.‖ Practically speaking, such clashes may occur whenever

the opposition to the President becomes as strong in Congress as it

did, most recently, from 1995–2000 and 2007–2008.

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,

5

a ―hawkish‖

opposition in Congress may gain political strength at any time,

such as in 2010 or 2014,

6

not necessarily because of the war issues

but perhaps from running on a political platform in which a

4

. This Article builds on impressive recent work that shows congressional

war powers far stronger than argued by those supporting the positions taken by

President George W. Bush. See David J. Barron & Martin S. Lederman, The

Commander in Chief at the Lowest Ebb—Fr aming the P roblem, Doctrine, and

Original Under standing, 121 HARV. L. REV. 689, 756–57 & n.201 (2008)

[hereinafter Barron & Lederman, F raming the Problem]; David J. Barron &

Martin S. Lederman, The Commander in Chief at the Lowest Ebb —A

Constitutional History, 121 HARV. L. REV. 941 (2008) [hereinafter Barron &

Lederman, A Constitutiona l Histor y]; Jules Lobel, Conflicts Between the

Commander in Chief a nd Congr ess: Concurrent Power over the Conduct of

War, 69 OHIO ST. L.J. 391 (2008).

5

. It is not suggested that wars in general, and the Afghanistan war in

particular, fall simplistically into the dichotomies or hypotheticals being

discussed. Some members of Congress who ot herwise have sterling ―hawkish‖

credentials—they favored maximum efforts in past wars a nd support full -sized

military budgets—might think the United States would do better just to get out

of Afghanistan. Conversely, members of Congress who otherwise have ―dovish‖

credentials a nd usually support any President under ―hawkish‖ criticis m might

join the ―hawks‖ on particular issues that appeal to them, like eradication of

opium poppies. A policy discussion about this would have to concern far more

fleshed-out facts and would be nuanced. It is only for illuminating the general

constitutional la w of war powers that simplistic dichotomies and hypotheticals

will serve. For these, too-fine p olitical and policy distinctions would be

distracting.

6

. For the author‘s previous discussion of this pattern in t he midterm

congressional elections of Presidents‘ seco nd terms—a 2004 prediction which

proved correct in 2 006—see CHARLES TIEFER, VEERING RIGHT: HOW THE BUSH

ADMINISTRATION SUBVERTS THE LAW FOR CONSERVATIVE CAUSES 315–16

(2004).

2011] CAN CONGRESS STEP UP A WAR? 393

―hawkish‖ view of the war is one of the platform‘s explicit or

implicit planks.

7

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.

Meanwhile, a relatively ―less hawkish‖ President may oppose

the steps demanded by Congress. As Professor Gregory Sidak

noted, ―[t]oday, of course, we are so accustomed to thinking of

Presidents as more hawkish than Congress that the hypothetical‖ of

a ―more hawkish‖ Congress ―would strike many as preposterous.

Yet history provides a number of commonly ignored examples.‖

8

This Article will mention those examples in their historical

contexts.

Consider how, in 2009, when General McChrystal proposed to

commit more troops to Afghanistan, Republican congressional

leaders called for General McChrystal to come to Congress and to

testify prior to the President‘s decision.

9

Those leaders also called

for ―full‖ approval of the general‘s proposal.

10

The dispute

7

. The Republican majority of the House starting with the 1994 election

did not become strong primarily, or even significantly, because of its position,

discussed below, that American troops should not serve under a U.N. flag. Yet,

once that Republican majority beca me strong from the rest o f its platform

(primarily domestic issues), that meant it had strength for it s position on

controversies over the military serving under a U.N. flag.

8

. Gregory Sidak, To Decla re War, 41 DUKE L.J. 27, 85–86 (1991).

Professor Sidak more particularly noted:

Today, of course, we are so accustomed to thinking of Presidents as

more hawkish than Congress that t he hypothetical of a dovish President

would strike many as preposterous. Yet, history provides a number of

commonly ignored examples: John Adams resis ted calls for a

declaration of war against France in 1798 and instead sought authority

for the limited and undeclared Quasi-War; James Madison was

ambivalent about declaring war on Britain in 1812; Grover Cleveland

in 1896 rebuffed the proposal by various members of Congress to

declare war on Spain; William McKinley in 1898 reluctantly conceded

to the same war fervor ; and Woodrow Wilson successfully campaigned

for reelection in 1916 on the slogan, ―He kept us out of war.‖

Id. (footnotes omitted). The 1990s include the example, discussed below, of a

Congress that o pposed overseas interventions during which troops served under

a U.N. flag. In the general environment of seeing the U.N. as committed to

―softer‖ approaches like nation-building and similar action in concert with

developing co untries, and the U.S.‘s co mmitment to ―harder‖ approaches such

as the 1991 Gulf War campaign crushing Saddam H ussein‘s armed forces, the

U.N. flag issue was, loosely speaking, about how ―hawkish‖ to be.

9

. Ann Scott Tyson, Gates to Boost ―Enablers‖ in Afghanistan Mission,

WASH. POST, Sept. 18, 2009, at A18.

10

. Karen DeYoung, Afghan Policy Battle on Horizon: General’s Call for

More Troops Divides Military and Policymakers, HOUS. CHRON., Sept. 22,

2009, at A1.