Can Congress Make a President Step Up a War?

AuthorCharles Tiefer
PositionCommissioner, Commission on Wartime Contracting in Iraq and Afghanistan; Professor, University of Baltimore Law School
Pages391-449
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 warstepping 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. INTL 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 19952000 and 20072008.
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 EbbFr aming the P roblem, Doctrine, and
Original Under standing, 121 HARV. L. REV. 689, 75657 & 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‖
credentialsthey favored maximum efforts in past wars a nd support full -sized
military budgetsmight 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 006see CHARLES TIEFER, VEERING RIGHT: HOW THE BUSH
ADMINISTRATION SUBVERTS THE LAW FOR CONSERVATIVE CAUSES 31516
(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, 8586 (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.

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