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Congress Is Too Timid to Fight Its Libya War—A Commentary by Stephen L. Carter ’79

The following commentary was posted on Bloomberg.com on June 23, 2011.

Congress Is Too Timid to Fight Its Libya War: Stephen L. Carter
By Stephen L. Carter ’79

In late 1907, President Theodore Roosevelt decided to send the cream of the U.S. Navy -- known as the Great White Fleet -- steaming around the world.

Congressional leaders, concerned about cost, warned that an appropriation to support the show of American power might not be forthcoming. Roosevelt replied that the money was already in hand, and he dared them to “try to get it back.”

Congress backed down.

What brings the story of the Great White Fleet to mind is the lawsuit filed last week by a bipartisan group of House members asking the federal courts to put an end to U.S. participation in the war in Libya, which they say is in violation of the War Powers Resolution. One senses in the appeal to judges the tragic desperation of a branch of government unwilling or unable to exercise its constitutional authority.

If Congress really wanted to end the U.S. role in the Libya war, it possesses the means to do so; all that is lacking is the political will. Indeed, there is little the president can do on his own if a sufficiently determined Congress decides to stop him.

As the constitutional theorist Charles Black pointed out 35 years ago, if one actually pages through the Constitution, one finds that Congress has far more authority than the president. Wrote Black: “as a matter of irreducible minimum, the presidency is an office of very little uncontrollable power.” On paper, at least -- still quoting Black -- Congress controls “just about everything.”

A Powerful Purse
The Founders, wary of executive authority, believed that by granting to the House and the Senate the power of the purse, they were providing a crucial tool for reining in the president. James Madison, in Federalist No. 58, called the power of the purse “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”

Thus today’s acid debate about the constitutional distribution of war powers misses the more obvious point: Any time Congress truly wants to stop the president, it is free to cut off the money.

People of good will may differ on the wisdom of the war in Libya (and when you fire missiles into another country you are at war, no matter what the Obama administration says), but no one can deny that the war is expensive. The labyrinthine nature of the defense budget makes precise figures difficult to come by, but the administration estimated that the first week of the war cost the United States about $600 million. Even with the reduced American participation since, the price comes to between $9 million and $10 million a day.

Stop the Flow
This is a great deal of money, and the military can spend it only with congressional acquiescence. If members of Congress truly want to end American involvement, they should not go hat in hand to the federal courts; they should fight hard, on the floors of the House and the Senate, to cut off the money.

It is not as though Congress has never attempted such a thing. In 1973, Congress cut off money for all U.S. combat activities in Indochina. More recently, it adopted riders prohibiting the use of any appropriated financing for the transfer of detainees from Guantanamo Bay, Cuba, to United States soil.

But the 1973 cutoff was imposed on a weakened President Richard Nixon, and the Guantanamo amendment reflected public ire. Neither represented the determination by an equal branch of the federal government to protect its constitutional prerogatives.

Other Branches Understand
If Congress, as a body, believes that presidents should not go to war without its permission, the remedy is obvious: cut off the financing every time it happens, even for wars its members happen to support. The difficulty, as Black pointed out, is Congress’s inability to think of itself as a branch of government, possessing prerogatives and powers that must be protected against encroachment.

Other branches get this point. Suppose Congress passed, and the president signed, a law depriving the Supreme Court of jurisdiction over abortion cases. The justices who support abortion rights would be joined by those who oppose them in striking down so blatant an intrusion into the prerogatives of the judiciary.

Congress, too, should behave this way. The Founders saw the separation of powers as the principal shield against the arbitrary and uncontrolled exercise of authority. Congress is supposed to check the president. So why doesn’t it fight back more often?

Merely Party Functionaries
Part of the problem is the distortion of the electoral incentive: Except for a handful of members in very safe and very liberal districts, spending measures that can be characterized as against our men and women in uniform are unlikely to play well in the voting booth. Then there is the well-attested difficulty of building legislative coalitions.

Perhaps the greatest challenge is that members of Congress see themselves first as party functionaries, not as protectors of their own constitutional prerogatives.

This congressional reticence is unfortunate. A president would be ill-advised to pursue a sustained military action without making Congress a partner; Congress would be ill-advised to let him. But when the House and Senate refuse to do their constitutional duty, they should scarcely act surprised if the president ignores them. The pathetic spectacle of our elected representatives begging the courts for help illustrates how far we have diverged from the Founders’ design.

Congressional leaders may be moving toward a vote on resolutions forcing members to go on the record as for or against the Libya war. This is all to the good. Let’s try: Criticizing from the sidelines while waiting to see which way things break might present certain political advantages. But it is constitutionally irresponsible.