Congressional leadership is necessary and proper
The Constitution was written by revolutionaries who had fought a war against the abuse of power by a king. The very notion of royal prerogative was repugnantand so it should remain.
The text gives Congress the power to "declare war," and no less importantly, the authority "to make all laws which shall be necessary and proper for carrying" out the war power.
If the Iraq war was begun on false pretences, it is certainly "necessary and proper" for Congress to require President Bush to withdraw the troops. A contrary view would create perverse incentives. Future presidents could lie to Congress to gain a declaration and know that Congress could not respond effectively once it had learned the truth. It is necessary and proper for Congress to cut off this form of deceit when it occurs.
This argument doesn't require me to claim that President Bush consciously misrepresented the intelligence reports in arguing for war. Even if he was the victim of a good-faith mistake, the next president will have an incentive to lie if Congress can't respond effectively when it learns the truth.
The Constitution should not be interpreted to encourage the branches to lie to one another. There were no weapons of mass destruction; no plausible links to Al Qaeda; therefore, it is "necessary and proper" for Congress to order a responsible withdrawal, on the ground that it would never have authorized the war in the first place.
This is just common senseand we should beware of any interpretation of Congress' war powers that sets the Constitution at war with common sense.
The Constitution also expressly grants Congress the authority "to make rules for the government and regulation of the land and naval forces." It is hard to imagine a clearer authorization for proposals, like Rep. John Murtha's (D-PA), which exercises this "regulatory" power to assure that our troops come to Iraq in good physical condition, and with adequate equipment, to succeed in their mission.
So what is our "debate" really about? Perhaps the constitutionality of congressional efforts to control the commander-in-chief in some other warone in which the president accurately described what we were getting into. Perhaps it's about a Congressional effort to move beyond Representative Murtha's proposals and actually tell the president where and how to fight once the troops get to Iraq.
The best answer to these hypothetical problems is that they are hypothetical. They should not cloud our debate about the war we really are fighting, and the proposals that Congress is really making. These are plainly within its constitutional competenceunless one supposes that the congressional power to authorize war is meaningless, or the president's power to command the troops is always superior to Congress authority to "govern" and "regulate" the armed forces.
We should see these extreme claims for what they arean assault on constitutional common sense.
Bruce Ackerman is Sterling professor of law and political science at Yale, and the author of "Before the Next Attack: Protecting Civil Liberties in an Age of Terrorism" (Yale, 2006).
The caravan passes while the dogs don't bark