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Whose War Powers?

Author: Noah Feldman
February 4, 2007
The New York Times Magazine

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For weeks, Congress has immersed itself in drafting a nonbinding Congressional resolution condemning the president’s plan to secure Baghdad by sending 21,500 additional troops to Iraq. Although Democrats and some Republicans have chosen the expedient route of impugning the surge without actually blocking it, some heavy hitters have hinted that Congress could use the power of the purse to force the president to follow its will. Senator Ted Kennedy has introduced legislation that would block the president from adding more troops without specific Congressional authorization.

The president, as usual, is having none of it. In an interview with “60 Minutes,” he asserted that Congress had no authority to interfere with his troop deployments. If President Bush sticks to his guns, the question of how far Congress can go to control his war plans is not going to go away. A constitutional conflict is brewing.

Who’s right? Lots of ink has been spilled over the relative powers of the president and Congress to begin wars. The War Powers Act of 1973—whose authority presidents of both parties have been loath to acknowledge—demands that a president terminate use of force after 90 days unless Congress has authorized him to continue. On the question of winding down hostilities, though, almost nothing has been said. The Constitution gives Congress the power to declare war; but does that include the power to undeclare it? If theIraq conflict were to end with a peace treaty, it would need to be submitted by the president and ratified by two-thirds of the Senate. Our war in Iraq, though, is not likely to end with a treaty of surrender. So far we don’t even have an enemy we can talk to.

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War Powers Resolution

This legislation passed the Senate on November 7, 1973, and prevents the U.S. president from waging war without Congress' approval.