Did the United States Congress, in authorizing President George W. Bush to decide when to use force in Iraq, forfeit its wartime constitutional responsibity?
For Louis Fisher the answer is easy: Congress relinquished its balancing role to the President in the run up to the Iraq War. Fisher, in criticizing the executive’s portrayal of Iraq’s threat to the United States, argues that Congress had two options: Congress could have waited until after the election as they did with the Persian Gulf War or follow the Vietnam experience: escape any electoral damage by quickly giving in to President primacy.
Julian Zeilzer and Keith Whittington offer meaningful historical perspectives the fateful events of 2002. Zeilzer illustrates the lame legacies of Congress of the post-WWII era: 1) increasing partisanship, 2) the failure of Congress to achieve equity with the executive branch in regards to media coverage and 3) its historic deferral to the President on national security after WWII.
Whittington paints the historical picture more deeply in regards to war powers: showing Congress’s failure throughout the post-WWII era to offer a credible alternative to the executive’s leadership in wartime powers, national security, and intelligence.
Given this historical context, Congress clearly did not relinquish its constitutional responsibilities by giving the President the authority to launch the 2002 Iraqi. Instead this decision follows a half-century historical trend in our nation’s constitutional development: in which the needs of a hegemonic American nation (i.e. to manage ever growing and global security concerns) have eroded the traditional war powers balance between the executive and legislative branches.
Louis Fisher (review of his recent book) makes two reinforcing arguments: 1) the threat posed by Iraq, as presented by the administration, was overblown and politicized and 2) that Congress failed exercise its Constitutional duties and have their deliberation lead to a more
informed debate. Fisher explains this failure through a botched political strategy: the Democratic leadership’s embrace of Bush’s request for authority over Iraq before a midterm election. For Fisher there stood an alternative strategy: Daschle could have delayed action until after the election and then held substantive discussion on the merits of engaging in preemptive action in Iraq. Fisher points to low public support for a war with Iraq to prove that that both options were feasible strategies. This representation of the public will, while clearly fails to highlight another feature of the public’s attitude toward the President: 75% approval of his handling of terrorism and 60% approval of his handling the nation’s affairs.[1] Suddenly the context of Daschle’s actions changes: instead of ignoring the public will, Daschle is facing political negotiations with a President with profound political support in the wake of the 9-11 attacks. The Iraq debate was not in a vacuum; it occurred within the context of the overall ‘war on terror’. In light of this, it seems that Fischer’s analysis would have done well to explore the ramifications of the Congress’s resolution three days after 9-11 allowing the President the following authority:
…use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.[2]
While Americans showed restraint in their willingness to go to war with Iraq, they still expressed faith in its chief proponent: the President of the United States. Such public faith lent legitimacy to both the Iraq resolution and its precursor that gave the executive an expanded role in making military decisions during the ‘war on terror’. It seems Fisher’s two options were not as equally viable as he would wish one to believe.
Why did the public hold such a strong view of executive authority? Julian Zelizer (press clip), in documenting Congressional reform, points both to military history and legislative developments that have reinforced Congress’s diminished role in making military decisions. Zelizer points out that since WWII the Congress has not declared war—whether in the large operations witnessed in Korea or Vietnam, or the more modest operations carried out in Kosovo. This historical trend has followed both a change in the role of media
and Congress. Zelizer’s overall project is to show how the shift from the committee system to the contemporary era has brought a mixed result: making it more open and decentralized, but at the same time making it more partisan and less trusted. Yet, one of the interesting wrinkles in this story is the failure of Congress to obtain a “legislative right to respond to the president (Zelizer 106).” In failing to act during a reformatory window, Zelizer shows how the door shut on Congress having an equal right to address the nation. In documenting this story, Zelizer shows the double-edged sword of television on Congress: while access gave Congressmen the ability to reach the public, Congress never was given the same preferential treatment as the executive branch. In 2002 Daschle not only faced a legislative precedent for the President’s authority in the war on terror, but faced a half-century of history that saw a popular President able to connect with the American public in a way Congress could not.
Had Congress achieved the ability to speak to the nation and maintained its bipartisan roots would there have been a different result in 2002? Perhaps. While Zelizer points to Congress’s low public support throughout the twentieth century, increased trust among politicians and the practical ability to talk back to the President would at the least allow Congress to reveal weaknesses in a President’s case for war. Accepting Fisher’s analysis of the weak foundations of the President’s case against Iraq, it seems that Daschle would at least have more tools to respond to Bush’s portrayal of the Iraqi threat.
Whittington (more on his research) offers a deeper historical reading into the constitutional constructions of the following constitutional overlaps between Congress and the President: the budget, war powers, and accountability in intelligence. In exploring war powers, Whittington uses the War Powers Resolution to tease out the relationship between the Congress and the President. Congress did make impressive gains in this act: control over foreign aid, defense appropriations, and
significant influence over treaties (Whittington 184). Yet while the Congress had a greater role in formulating “defense priorities” the resolution “reflected the unwillingness of Congress to curtail sharply presidential warmaking and have only marginally constrained presidential action in the decades since (184).” The rationale for this bargain is clear: whereas Congress can offer discussion and debate, it cannot guarantee quick and decisive action (182-183). Instead the War Powers Resolution enshrines a “legislative veto,” that while giving Congress increased ability to debate the merits of a given conflict, leaves positive action to the President (183). Furthermore the act does not set legal boundaries for the President, leaving it to Congress to choose when to enforce their voice on Presidential action (186). Whittington argues, like Zelizer, the role of the Congress and President on national security has evolved over time: reflecting the needs of a military superpower. Yet Whittington stresses the ability of Congress to deliberate on the needs of national security.
Thus Whittington adds a nuanced historical description, backing up Fisher’s argument that Congress elected to not play its role in deciding the nation’s security priorities.
The Iraqi resolution showed the War Powers Resolution bypassed: with Congress handing to the President complete mastery over the framing of the debate. But at the same time, Whittington highlights the solidified primacy of the president in making wartime decisions. For Whittington the Congress’s role is to “mobilize popular support and to reflect popular dissent (178).” While Fisher may point to polls showing uncertainty about going to war with Iraq, it is clear that Congress did not fail in its role to reflect the public’s interest in light of clear public faith in the performance of the President.
So what come out of this discussion of Fisher, Zelizer, and Whittington?
Whittington shows that Congress never had control over warmaking coming into the 2002 debate. Any handover of power had occurred well before: with the War Powers Resolution granting the President primacy in warmaking ability as long as it followed popular sentiment.
Thus Fisher’s contention that Congress retreated from representing the public will is dubious: the nation overwhelmingly approved of Bush’s actions as commander-in-chief even while unsure of what action to take in Iraq. This reflected the changed political landscape after 9-11: with the American public looking to a strong executive to manage a national security state. Given these conditions, it seems Congress followed its proper role as envisioned by the War Powers Act.
This is not to suggest such a pathway is ideal: the aftermath of the Iraq War makes clear that the nation would have benefited from a greater Congressional counter-weight to executive authority. But to blame the political maneuvers that occurred in October 2002 is wrong; instead, one must look back to the War Powers Resolution as the true forfeiting of Congressional influence over warmaking policy.
The cause? The executive’s evolution into an administrator of a national security state. A trend that has only been heightened with the threat of international terrorism.
Can this be altered?
Fischer makes clear that there is room in the Constitution for a reformulating of warpowers between the President and the Congress. Yet, Zelizer’s work shows 1) that the opportunities for reforming Congress are few and far between and 2) Congress’s inability to match the President’s power in molding public opinion.
Such conditions cripple Congress from asserting itself as an equal partner to the President in decisions of war and peace in the near future.
Works Cited
Fisher, Louis. “The Way We Go to War: The Iraq Resolution,” in Gary L. Gregg and Mark J. Rozell, editors, Considering the Bush Presidency, Oxford University Press, 2004).
Noah, Timothy. “Zen and the Art of Political Cowardice.” December 4th, 2001. Slate. http://www.slate.com/?id=2059333
Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. (Harvard University Press, 1999), Chapter 5.
Zelizer, Julian E. On Capitol Hill: The Struggle to Reform Congress and Its Consequences, 1948-2000. (Cambridge University Press, 2004)
“Poll: Bush hasn’t made case for Iraq war.” Associated Press, 12/17/2002. http://www.usatoday.com/news/nation/2002-12-17-iraq-poll_x.htm
[1] http://www.usatoday.com/news/nation/2002-12-17-iraq-poll_x.htm
