After nearly four years of failing to provide meaningful oversight of the Iraq war, it is no wonder that the newly Democratic Congress is eager to make up for lost time. Congressional proposals for reversing the course of the war are flying fast and furious. They include Sen. Barack Obama’s call for a drawdown by May 2007 and a complete withdrawal by the end of March 2008, and various suggestions to amend the original authorization for the Iraq war to limit the troops to peacekeeping and fighting al-Qaida.
Given the Bush administration’s generally disastrous conduct of the Iraq war and occupation, and its unrivalled claims of unilateral executive war powers, these reassertions of congressional authority are understandable. But are they constitutional? And are they wise?
The Constitution gives Congress the power to declare wars, fund them, and oversee the way they are fought. Yet the Constitution never says exactly how these powers are to be reconciled with the president’s authority as commander in chief. The Constitution surely must empower the president to fight wars effectively enough to win them. That means that war must be conducted under the president’s direction, not run by committee. In the modern era, no country—not even a parliamentary democracy—has been so foolhardy as to place a war under the guidance of a legislative body, rather than a single, unified command.
Noah Feldman is Cecelia Goetz Professor of Law at New York University and a senior adjunct fellow at the Council on Foreign Relations. Samuel Issacharoff is Bonnie and Richard Reiss Professor of Constitutional Law at the New York University School of Law.