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January 10, 2007

Congress Has the Constitutional Authority to Withhold Funding For Troop Escalation

Despite what paper tigers like Joe Biden are saying, the U.S. Congress does, in fact, have the constitutional power and authority to refuse funding the troop escalation Bush has planned for Iraq. Moreover, previous congresses have not been shy about enacting funding restrictions. The Center For American Progress spells out the details in a report it's circulating, in an effort to educate some of the more ill-informed representatives in D.C.

According to the report, Congress may limit or shape troop deployments, cap the size of deployments, or prohibit funding for existing or prospective deployments.

Leaving aside the authority over shaping deployments themselves, let's take a look at the basic act of funding authority, because it's the "power of the purse" that Rep. Jack Murtha and Sen. Ted Kennedy are planning on exercising.

A few examples of funding restrictions enacted by past congresses:

December 1970. P.L. 91-652 – Supplemental Foreign Assistance Law. The Church-Cooper amendment prohibited the use of any funds for the introduction of U.S. troops to Cambodia or provide military advisors to Cambodian forces.

June 1973.  P.L. 93-50 – Supplemental Foreign Assistance, “None of the Funds herein appropriated under this act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam, and South Vietnam by United States forces, and after August 15, 1974, no other funds heretofore appropriated under any other act may be expended for such purposes.”

December 1982. P.L. 98-215 – Defense Appropriations Act. In what became known as the Boland Amendment, Congress prohibited covert military assistance for Nicaragua.

November 1993. P.L. 103-139. The Congress limited the use of funding in Somalia for operations of U.S. military personnel only until March 31, 1994, permitting expenditure of funds for the mission thereafter only if the president sought and Congress provided specific authorization.

September 1994. P.L. 103-335. The Congress declared “no funds provided in this Act are available for United States military participation to continue Operations Restore Hope in or around Rwanda after October 7, 1994, except for any action that is necessary to protect the lives of United States citizens.”

June 1998. P.L. 105-85 – Defense Authorization Bill. The Congress prohibited funding for Bosnia “after June 30, 1998, unless the President, not later than May 15, 1998, and after consultation with the bipartisan leadership of the two Houses of Congress, transmits to Congress a certification— (1) that the continued presence of United States ground combat forces, after June 30, 1998, in the Republic of Bosnia and Herzegovina is required in order to meet the national security interests of the United States; and (2) that after June 30, 1998, it will remain United States policy that United States ground forces will not serve as, or be used as, civil police in the Republic of Bosnia and Herzegovina.”

The Bush administration and its bouncers are, once again, playing the treason card to frighten skeptics into acquiescing on escalation,  but even some of their own - Chuck Hagel and Gordon Smith - are expressing trepidation at the prospect of throwing more fuel onto the fire of a wide-spread civil war that none can plausibly deny is enveloping Iraq. The so-called "coalition of the willing" is a shell of its former self, with only the Brits left behind to clean up after us in the south of the country. And even the Brits are making noises that they want no more of Bush's Folly.

Most of our Washington State delegation has come out in opposition to the craziness of the Cowboy's "surge" (so far, Reichert, McMorris and Hastings are sticking with the cowboy on this one.) But the Dems are not exactly united in opposition. Adam Smith, Patty Murray and Maria Cantwell are trying to skate a very fine line -- claiming they oppose a troop increase but have no power to stop the funding for one. In other words, "Mommy, I don't want to, but he's making me do it!" Maybe they need to get a friendly tutorial from the historically hawkish Norm Dicks, who clearly got the message the voters sent on November 7th. Dicks is not buying into anymore of the president's "when the Iraqis stand up, we'll stand down" nonsense, and he's highly skeptical that any benefits will be gained by an escalation. Hopefully, that healthy dose of skepticism will rub off on some of our more wobbly electeds.

Update: Congressmen McDermott and Smith were on KUOW's Weekday this morning, discussing the strength of the Dems opposition to the escalation. Smith sounded more convinced about the wrongness of the troop buildup than in either of today's P.I. or Times articles. Unfortunately, he's still pressing the message that there isn't a way to restrict the "surge" funding without threatening to withhold equiptment and armor for the troops already there. To that I say: show some resolve, Congressman. And does anybody still believe that the troops on the ground have been getting the armor they need, so far? $358 billion later...

McDermott, on the other hand, seemed to know the history of funding restrictions quite well, referring explicitly to the Boland Amendment, and cautioning that, if Dems want to make this work, they've got to show real courage and write the language of legislation very tightly. Otherwise, Bush will do whatever he can to wriggle out of it. I think most people remember that the way the Reagan Administration got around the Boland Amendment was by thoroughly illegal means.

Posted by shoephone on January 10, 2007 at 01:35 AM in National and International Politics | Permalink


Accelerating Iraq - No! Precedents for de-funding the war as you have set out in your blog - yes! I literally am praying hard that Congress and especially our WA delegation will vote the will of the people and use the power of the purse on this one. Thank you for posting, and it is very much an important part of the dialogue. Congress telling us they cannot vote not to fund without harm to the troops and finding ways to help them do the job they were voted into office in 2006 to do...get us out of Iraq.

I cannot bear to think that Congress would be using a political football ploy to better position themselves for 2008 at the expense of more lives of our U.S. troops and Iraqi civilians. The monument for Iraq war already will bear 3,000 names. The monument for Vietnam bears 58,000 names. Precedents for how Congress can de-fund Iraq must be known to them - surely they wouldn't overlook using those powers for political positioning?

I am given to understand and I welcome clarification if this is not the situation - there are currently enough monies in the supplemental appropriation passed by Congress in fall, 2006 to bring our troops home quickly and safely, with all the equipment and supplies needed for this redeployment. If more monies are needed to bring our troops home quickly and safely, monies in the Department of Defense budget could be re-programmed for that purpose. Congress, using their power of the purse to de-fund this war, will NOT be abandoning our troops – leaving them in Iraq is abandoning them.

Posted by: Lietta | Jan 10, 2007 2:21:24 PM

Not to defend an obvious goober in Joe Biden, but I believe what he was refering to was the President's authority as commander'in'chief to command the military (Article 2, Section 2). I think Biden meant to say that the President can order troops to Iraq, but it's up to congress to fund them (or not).

Posted by: Will | Jan 10, 2007 7:01:51 PM

Will - I'm basing my reference to Biden on his Meet the Press appearance last Sunday, where he said that though he totally opposes the escalation, there's not much he can do about it. here's the MTP link: http://www.msnbc.msn.com/id/3032608/ (click on "Biden opposes troop surge in Iraq")

Biden said if the president, as commander-in-chief, wants 20,000 more troops he can do it, and that

"as a practical matter, there's no way to say 'Mr. President: stop'".

I just think he's wrong about that (ie. the Center for American Progress paper). He said he's planning on doing three things;

1)Speaking out against it
2)Holding hearings over the next four weeks
3)Drafting a "Sense of the Senate" resolution of disapproval.

Option #1 is fine, but he said it won't get him anyhere with the president

Option #2 is needed, but Bush is planning to get the troops in there by the end of January (3 weeks from now) and ABC News reported earlier today that Bush has already deployed over 9,000 troops to Iraq as part of the "surge", without any congressional debate, let alone oversight. So, four weeks from now we may have more understanding from military leaders what's at stake with the escalation, but by then it will have already been implemented.

Option #3 - possibly paves the way for a real constitutional challenge to Bush's authority, if they can peel off enough Republicans to join in opposing.

But we both know that Bush doesn't care what his Repub. congresspeople think. He doesn't care what anyone thinks. He's busy firing the generals who oppose his plan. I think Biden, as well as some others of our Dems, need to take action on funding. It can be done. It requires resolve, and some faith as well.

Posted by: shoephone | Jan 10, 2007 8:06:04 PM

Oops - meant to say that ABC reported that 90 (not 9,000) were deployed today, with another 800 to be deployed to Iraq tomorrow.

Preview, shoephone, preview.

Posted by: shoephone | Jan 10, 2007 9:20:07 PM

Well, duh. Yes, previous Congresses have CLAIMED to have the authority to override Presidential military decisions as commander in chief. Congress routinely CLAIMS to have the authority to do things that may not be effectively challenged or tested. That means they've made an argument, not that they've won one. Presidents routinely do the same thing, e.g., in so-called "signing statements.")

Your analysis, and that of the white paper you link to, is rather lacking in what the OTHER TWO constitutionally coordinate branches of government have to say about that. Any non-moronic discussion of this question has to at least acknowledge the contrary position -- that the Constitution commits to the President the role of Commander in Chief. Were that acknowledged, then I'd be the first to acknowledge, in response, that where to draw the line between the power of the purse and the power to direct the military isn't always crystal clear. And that's why we have that third branch of the federal government, who indeed fancies ITSELF the arbiter of constitutional questions: SCOTUS.

Posted by: Beldar | Jan 11, 2007 11:04:45 AM

Well, I am not sure this is a debate for the courts but cutting off funding is at best a tactic. It may be a good one, given who is president though. To a degree it amounts to a tactic in an ongoing game of chicken since not appropriating money for the war would not even effect the troops for what I expect would be months due to the pipeline effect of contracting for and then shipping supplies. And the executive branch along with the military would find ways to work around the funding issue. All the while the stinking surge will be well under way and public opinion efforts will be on overtime.

Posted by: Particle Man | Jan 11, 2007 1:32:48 PM

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