On Tue, 16 Jan 2007, andie nachgeborenen wrote:
> > [So are you saying that Section 5(c) of the War Powers Act is
> > unconstitutional because of the subsequent ruling in INA v. Chanha?]
>
> Yeah, that's my argument, minus some bells and whistles, which I left out
> not to bore people with legalism.
I would be interested in your legalism, although I might be the only one. (Because I'm not so sure Chanha provides a clear precedent here for various reasons. But of course IANAL and UR.)
But off-list, Jordan actually pointed out something far more extreme: Weisberg has totally misinterpreted the War Powers Act. Doug's comment at the top of this thread was right: there is no language in the War Powers Act about revoking an authorization once given. Weisberg is misreading Section 5(c) which says:
SEC. 5. (c)
Notwithstanding subsection (b), at any time that United States
Armed Forces are engaged in hostilities outside the territory
of the United States, its possessions and territories without a
declaration of war or specific statutory authorization, such
forces shall be removed by the President if the Congress so
directs by concurrent resolution.
Jordan points out the key phrase is: "WITHOUT a declaration of war or specific statutory authorization."
In other words, this section only applies when Congress hasn't given an authorization; it has no application when it has. It is essentially a subclause added on to sections 5(a) and 5(b), which are the heart of the War Powers Act, the core of which is that the president can act on his own accord but there's a 60 day limit. 5(a) says he has to report to Congress within 60 days; 5(b) says if congress doesn't give him an authorization, the president has to start withdrawing troops at that point; and 5(c) is simply saying that congress can make him do it earlier if it specifically passes a resolution ordering him to. (IMHO, they don't specifically say "earlier" because there is a great deal of fuzziness about when any of these 60 day periods begin.)
(The text of the act is here: http://www.cs.indiana.edu/statecraft/warpow.html
So Doug is completely right. Weisberg is all wet. If there is any basis for Congress to act on Iraq -- and I think there is -- the War Powers Act is assuredly not that basis.
> I wish that I also thought it was constitutional for Congress to end
> undeclared wars. I'm not an originalist, but the framers certainly didn't
> contemplate the circumvention of Congress' power to declare war by the simple
> expedient of not declaring war.
True. But that doesn't really apply here. This war was officially authorized by Congress with a statutory act that everyone agrees was the functional equivalent of a declaration of war.
The question here is: if Congress has the power to authorize war, does it have the power to de-authorize it?
And it seems clear it does. It could pass a resolution rescinding the authorization. Nothing can stop it. It would certainly have a political force to say the President is now prosecuting an officially unauthorized war. Whether it would have a constitutional force is an entirely open question. Nobody's ever done it before. But of course that's how branches get or lose power -- by asserting it or acquiescing in it. The imperial presidency was largely the product of the cold war. Perhaps the very different circumstances of the post-cold war period could lead to a different balance of power -- if Congress asserted it.
Michael