JURIST Guest Columnists Victor Hansen
and Lawrence Friedman
of New England School of Law say that the President's stretching of US military resources close to the breaking point in Iraq raises a constitutional issue demanding Congressional intervention ...
ecently, much attention has been paid in the media to the legality of many of the Bush administration's efforts to prevent future terrorist attacks in the United States, including the use of torture on terrorism suspects and widespread electronic surveillance of domestic telephone and Internet traffic. Lost in the headlines has been further confirmation that the U.S. Army is stretched too thin. The latest indicator has come by way of a Pentagon-commissioned report from Andrew Krepinevich. The essence of the report is that the troop deployments to Iraq cannot be sustained at current troop levels and that the Army is in danger of reaching the breaking point. This is not just a military or logistical matter - it is also an issue of constitutional dimension, one that involves specific allocations of authority between Congress and the President.
While the President’s authority as Commander in Chief includes the discretion to control military forces in the field and matters related to the national defense, he does not have the unchecked power to regulate the armed forces or to determine the appropriate troop levels and force composition. The Constitution expressly authorizes the Congress, among other things, to “provide for the common Defense,” U.S. Const., Art. I, § 8, cl. 1; to raise and support armies, see id. § 8, cl. 12, and to “make rules for the government and regulation of the land and naval forces,” see id. § 8, cl. 14. The President, on the other hand, has the authority to see “that the Laws [are] faithfully executed,” Art. II, § 3, and to serve as the Commander-in-Chief, see id. § 2, cl. 2. Given these textual commitments of authority and responsibility, in no sense can it be maintained that the President has exclusive authority over matters related to foreign affairs and national security, in particular maintenance of the country’s armed forces.
Indeed, Congress is constitutionally required to exercise its appropriations authority in respect to the armed forces every two years, and the Congress in modern times has consistently exercised that power. See id. § 8, cl.12. Congressional authority does not end at the decision to raise an army; it embraces as well the discretionary authority to “support” the army—to regulate its size and composition. There is little support in history for the view that, once the Congress called an armed force into existence, the issue of its maintenance would fall within the Executive authority. As Alexander Hamilton noted in Federalist No. 69, the President’s constitutional power as Commander in Chief relates to the command and direction of military forces; it does not extend to “the . . . regulating of fleets and armies.” And the Supreme Court has taken the view that constitutional text means what it says. The Court concluded in Loving v. United States, 517 U.S. 748 (1996), for example, that the Executive has the power to regulate the conduct of members of the military, but he may do so only so long as those regulations do not conflict with Congressional enactments.
Congress, in short, has the constitutional authority to ensure that the armed forces are well-maintained under the watch of any President. As Professor Louis Henkin put it in his seminal essay on the Constitution and foreign affairs, “[t]he evidence is that in the framers’ contemplation, the armed forces would be under the command of the President but at the disposition of Congress” (Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs
25 (1990)). It follows that Congress has a responsibility to take the President to task when, as is the case today, his increasingly unreasonable assessment of the Army’s long term needs and sustainability threatens the structure and integrity of American military capacities as the world’s most powerful fighting force. Congress abdicates that responsibility when it does not fully inquire into the status and condition of that force.
One might argue that questioning the President’s handling of the composition and maintenance of the Army is just another aspect of the criticism that has been leveled at the administration’s decision-making in respect to the war in Iraq and the post-war occupation. But that would miss the point that the current problem concerns the Army’s ability to defend the nation apart from the ongoing American involvement in Iraq. And the problem of force strength is not an issue—like the administration’s views on the use of torture or deployment of a domestic electronic surveillance program—that may be resolved by the federal courts. Rather, the constitutional obligation to ensure that the military’s ability to defend the nation lies squarely with the Congress.
In exercising its constitutional role in the appropriations process, Congress must take into consideration evidence like the Krepinevich report. While the military services through the Department of Defense determine what they believe the appropriate levels of troop strength should be, Congress is not obligated to accept the Department of Defense’s or the administration’s views as to the appropriate levels of troop strength and composition. Congress must conduct its own inquiry through congressional hearings and investigation, and determine independent of the administration what the state of the Army is and what the appropriate force levels are for the Army in the future. Congress must then provide an honest assessment both in the appropriations process and otherwise about the real costs of sustaining the world’s best fighting force over the long term.
This issue naturally implicates current debates about the extent of Congress’s war powers. Congress has long claimed its constitutional authority to declare war makes it an equal partner with the Executive in matters concerning the national defense, while this President more than his predecessors views his authority in this regard as virtually limitless. If Congress wants to assert that authority, it must begin by fulfilling its constitutional obligation to see that the Army is sufficiently manned and fully resourced. The nation simply cannot afford to rely on the President’s short-sighted and unrealistic assessments of the Army’s condition any longer.Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches courses in criminal law at New England School of Law, where Lawrence Friedman teaches courses in constitutional law.