Even Scalia Agrees

washingtonpost.com

Why Would Congress Surrender?

By Fred Barbash
Wednesday, January 31, 2007; A15

In a matter of days the Senate is likely to begin debating several nonbinding resolutions on the president's plan for a troop buildup in Iraq. As the battle is joined, both houses of Congress need to be reminded that the stakes go well beyond this particular buildup, this particular war and even this particular presidency.

At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the "battlefield" over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by presidents yet unborn, armed with the precedents being set right now.

In these matters, there is no such thing as inaction. In a contest between two branches over separation of powers, silence speaks as powerfully as words.

That's because the Supreme Court rarely involves itself in disputes between Congress and the executive, expressly making it a two-way conversation -- a "shared elaboration" or "shared dialogue" in the words of scholars -- between the elected branches. When one branch drops out by failing to respond, the other branch effectively sets the precedent, which is passed along to the next generation and the generation after that.

Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it's as good as law.

This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch.

Now, people who know better show no surprise at the notion that Congress's only war-related authority is the power of the purse. Timid requests for legislative involvement are ridiculed and caricatured as "micromanagement" or, worse, as comforting the enemy.

It's as if there is nothing left to argue about -- except, of course, there is, though it seems so elementary.

Article II does indeed make the president commander in chief.

But Article I gives Congress not merely the power of the purse. It vests in the House and Senate the authority to "declare war," to "make rules concerning captures on land and water," to "provide for the common defense," to "raise and support Armies," and to "make rules for the government and regulation of the land and naval forces." In addition, the Senate advises and consents on important military appointments, which is why Lt. Gen. David Petraeus was on Capitol Hill last week for confirmation as the general in command of U.S. forces in Iraq.

War is a shared responsibility. The records of the 1787 convention at which the Constitution was drafted unquestionably demonstrate that. An early version of Article I, for example, gave Congress the power to "make war."

The delegates changed the wording to "declare war," not to remove Congress from the process but to leave the commander in chief the "power to repel sudden attacks," as James Madison put it. "The executive should be able to repel and not to commence war," agreed Roger Sherman. In the eyes of some delegates, this limited authority was safe in the hands of a president because "no executive would ever make war but when the nation will support it," said delegate Pierce Butler.

One can argue about this view, of course, but Congress generally chooses not to, despite occasional prodding from Supreme Court justices such as Antonin Scalia. In a dissent in Hamdi v. Rumsfeld, the 2004 decision requiring the administration to give detainees some neutral forum in which to make their case, Scalia noted that the Founders mistrusted military power "permanently at the executive's disposal."

"Many safeguards in the Constitution reflect these concerns," he said, including expressly involving Congress in the war-making function. Indeed, wrote Scalia, "except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II."

Scalia also chided Congress for its "lassitude" on the topic. "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis -- that, at the extremes of military exigency, inter arma silent leges," he wrote. "Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

The equilibrium of government, in the view of the Constitution's Framers, rested on a stated assumption that each branch would fight fiercely to expand its authority but just as fiercely resist encroachment from another branch.

That Congress would refuse to fight seemed unimaginable.

The writer, who covered the Supreme Court for The Post, teaches at Northwestern University's Medill School of Journalism. He has written widely about constitutional history.