Limited war and the Constitution: Iraq and the crisis of presidential legality.

• Author: Ackerman, Bruce

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes--expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by his predecessor's exercises in institutional aggrandizement.

The presidency is not solely responsible for this unconstitutional escalation. Congress has failed to check this abuse because it has failed to adapt its central power over the use of military force--the power of the purse--to the distinctive problem of limited war. Our proposal restores Congress to its rightful role in our system of checks and balances. We suggest that the House and Senate adopt new "Rules for Limited War" that would create a presumption that any authorization of military force will expire after two years, unless Congress specifies a different deadline. The congressional time limit would be enforced by a prohibition on future war appropriations after the deadline, except for money necessary to wind down the mission.

These new rules would not only prevent presidents from transforming limited wars into open-ended conflicts; they would also create incentives for more robust democratic debate. Under the Constitution, either the House or the Senate may adopt these rules unilaterally, thereby avoiding the threat of presidential veto. Building on this constitutional foundation, our proposal provides a practical way in which Congress may effectively reassert its constitutional power-and with it more effective democratic control--over the use of military force.

TABLE OF CONTENTS INTRODUCTION I. CONGRESS'S POWER TO AUTHORIZE LIMITED WAR II. FROM LIMITED TO UNLIMITED WAR: THE CASE OF IRAQ A. Congress's Limited War B. War Within Limits C. War Beyond Limits III. THE POWER OF THE PURSE AND ITS INSTITUTIONAL TRANSFORMATION A. The Founding Era B. Transformation C. The Modern Era 1. Vietnam 2. Iran-Contra 3. Somalia and Kosovo 4. Iraq and Afghanistan IV. NEW RULES FOR LIMITED WAR A. The Proposal: An Elaboration B. The Proposal in Action: An Assessment 1. Period One: Authorizing the Conflict 2. Period Two: The Period of Authorization 3. Period Three: The Period of Withdrawal 4. Political Dynamics over Time C. Strategies of Credible Commitment 1. The House 2. The Senate 3. A Third Way: Concurrent Resolution 4. A Fourth Way: The Byrd Rule Precedent. CONCLUSION; A WINDOW OF OPPORTUNITY? INTRODUCTION

Traditional doctrine divides America's wars into two categories: unlimited wars, like World War II, and momentary interventions, like Grenada. But the recent conflicts in Iraq and Afghanistan fit into neither of these neat boxes. They are of limited duration and purpose, but far from momentary; we shall call them "limited wars." These modern conflicts challenge the conventional understanding of power-sharing arrangements between the president and Congress over the use of military force.

There have been no truly unlimited conflicts since World War II. (1) American interventions in Korea, Vietnam, and Iraq were clearly different from Grenada, but they were not totalizing conflicts like the struggle against the Axis alliance. Nonetheless, the War Powers Resolution, passed in the wake of Vietnam, continues to suppose that wars come in only two sizes. It distinguishes between very short-term interventions and the rest. The resolution authorizes the president to make brief interventions unilaterally--giving him sixty days to use military force without legislative approval. But the president has to go to Congress for explicit authorization during this period if he wants to sustain his offensive for a longer period. (2)

The idea behind this compromise was simple: the president should have the power to fend off momentary threats, but he must work with Congress to carry out any significant military conflict. This allowed the country to maintain its deep commitment to interbranch cooperation while permitting it to respond to short-term emergencies. But the compromise failed to acknowledge that modern war is limited war. And the challenge of limited war is not merely to induce the president to seek Congress's approval at the start. The real problem is in enforcing the limits once the war is already underway.

The recent Iraq war exemplifies this challenge. When Congress authorized the invasion of Iraq in 2003, it did not give President Bush the carte blanche he sought. It self-consciously restricted the war's aims to narrow purposes, expressly authorizing a limited war. Yet the president transformed a well-defined and limited mission into an open-ended conflict with changing aims. The critical moment came during the final months of the Bush Administration. Despite Obama's victory at the polls, President Bush broke statutory limits on the war without requesting congressional approval. He asserted his authority to transform a limited war into an unlimited one by concluding an executive agreement with the Iraqi government. Despite the protests of congressional leaders, including then-Senators Joseph Biden, Hillary Clinton, and Barack Obama, the Bush Administration simply cut Congress out of the international lawmaking process, leaving the executive agreement as its legal legacy.

This represented a breathtaking assertion of presidential authority to redefine war aims without the consent of Congress. Once the Democratic leaders in the Senate took over the executive branch, however, they failed to challenge Bush's assertion of presidential prerogative. They silently accepted his unilateral actions, allowing them to serve as the foundation of their own Iraq policy. This failure threatens consolidation through acquiescence. Unless the current administration changes course, it will entrench the Bush precedents into our constitutional practice, making it much harder for a future Congress or president to recalibrate the constitutional balance of powers.

The radical transformation of limited into unlimited war was made possible by the erosion of Congress's most powerful tool for controlling military force--the power of the purse. Congress has failed to adapt this power to meet modern challenges. What was once a highly effective mechanism for forcing the president to operate within congressional limits has eroded over the course of two centuries. (3)

Taking a broad historical view permits us to move beyond the standard explanation for congressional passivity in the modern era. (4) According to the conventional wisdom, Congress lacks the political will to use the power of the purse to stop presidential war-making in its tracks. While this may have been true in particular cases, Congress has in fact demonstrated political forcefulness on many occasions. The key modern problem is Congress's lack of institutional capacity to exercise its political will. It has allowed the budgetary process to evolve in ways that make it extraordinarily difficult to act decisively. As our Iraq case study shows, the Bush Administration was in a position to pay for the initial invasion with money appropriated for other purposes. It then funded the war through a series of well-timed requests for "emergency" supplemental appropriations. By deferring these requests to the last minute, President Bush put Congress in an untenable position. If it refused funding to enforce its statutory limitations on the war, it would be accused of abandoning the troops in the field. This was too high a political price to pay to force the president to retreat from Iraq, as the initial congressional authorization required.

The strategic use of emergency appropriations allowed the president to engage in "bait-and-switch" tactics that undermined effective democratic control over the use of military force. Following the Iraq precedent, future presidents will be able to "bait" Congress and the American people into approving a limited war, and then "switch" to a much longer war with more ambitious objectives. Serious congressional consideration of these escalating war aims will be short-circuited by the repeated use of the "emergency" appropriations device.

This diagnosis suggests the need for an institutional remedy. The Iraq case shows that it is not enough for the initial authorization of force to specify the limited purposes of the war. It must also specify the limited time period for the conflict, requiring the president to return for an explicit reauthorization if he wishes to extend the war beyond the preset period.

This can be accomplished by either the House or the Senate using its constitutional authority to "determine the Rules of its Proceedings." (5) The Constitution gives either chamber the authority to change its rules governing future authorizations for the use of force. Under our proposed "Rules for Limited War," all future authorizations will be valid for only two years unless the House or Senate sets a different time-limit--or declares that the war should continue, without limit, until victory is achieved. But unless Congress makes this decision explicit in its initial authorizing resolution, the two-year term will serve as a default rule. The new rules will be enforced through a prohibition on all war appropriations after the congressional deadline, except for money needed to wind down the mission over the course of one year.

Our proposal is designed to be both politically feasible and instrumentally effective in controlling the democratic pathologies of a presidential bait-and-switch. It builds on precedents developed by Congress to control...