Is there a point at which a war becomes so unpopular, and a president's mismanagement of it so egregious, that the Congress is within its rights to strip him of his command, regardless of the Constitutional issues? Today, Yoo and Ackerman discuss the imbalance of power between the president and Congress. Previously, they debated the presidential practice of unilaterally going to war, the hypocrisy of the left and the right on the issue of war powers, the ongoing use-of-force resolution and the war powers language of the constitution.

Remember Andrew Johnson


Let's move beyond the founding and consider the historical lessons of Reconstruction.

President Andrew Johnson's abuse of his powers as commander in chief provoked his impeachment. When Lincoln was shot, the defeated South was under military occupation, and it was up to Johnson to take command. But he didn't use this power wisely. He refused to cooperate with Congress in formulating a sensible plan for Reconstruction. When Congress passed a statute over his veto, he used his military commanders in the South to sabotage the congressional effort.

Congress responded by stripping Johnson of his powers as commander in chief. Overriding his veto, it required Johnson to issue all orders through General Ulysses S. Grant and barred him from firing Grant without the consent of the Senate. At the same time, it also prohibited the president from firing Secretary of War Stanton without Senate approval.

Johnson was defiant. He fired Stanton and denied that Congress had the authority to strip him of his powers as commander in chief. Johnson was absolutely right on the law. But that didn't stop the House from impeaching him. While he managed to escape conviction by a single vote in the Senate, his disastrous confrontation gravely weakened the presidency for a generation. (For a blow-by-blow account, take a look at the second volume of my We the People series.)

When today's historians look back to this episode, they do not give Johnson high marks for his heroic defense of his powers as commander in chief. They regularly award Johnson last place in their rankings. His defiance of Congress has earned him the reputation as the worst president in American history.

There is a lesson here. Even if you were right in converting President Bush into the legal equivalent of King George III, the president would be terribly unwise to press his powers to their furthest limits. Instead of pushing extremist positions, he should be reaching out to Congress and recognize that the voters are demanding a clear exit strategy in Iraq. If he acts sensibly, there is every reason to believe that Congress will reciprocate.

For example, Congressman David Wu (D. Oregon) and I have proposed a "Half-Trillion Dollar Solution" to the present standoff over Iraqi war appropriations. By conservative estimates, we have already spent about $350 billion on the war. The present bill funds the conflict through the end of this fiscal year, requiring the president to come back again with another request for 2008. At the current rate, President Bush will have spent more than $500 billion before leaving the White House.

Given these budget-busting sums, Congressman Wu and I suggest that Congress should attach a rider to the current appropriation bill which sets an absolute ceiling of half a trillion dollars on total war spending. President Bush would get his current funding, but he would have to accept a ceiling that would require departure from Iraq sometime in 2008.

This proposal achieves this objective by a "delayed funding cut-off" of a kind that you agree is perfectly constitutional. This means that we could continue our debate on the big constitutional issues without providing ammunition for an escalating war between the branches.

Nobody will really win from two more years of conflict. Despite the precedent of Andrew Johnson, I oppose any effort at impeachment—this is a luxury we can't afford when fighting two wars overseas. Nevertheless, the battle between the president and Congress will be furious. Even if overwhelming political pressure doesn't force the president to capitulate, his successor may well inherit a badly damaged office.

As Andrew Johnson's example suggests, Americans want something more from a president than the aggressive defense of his powers as commander in chief. We want—dare I say it?—wisdom.

A wise president would choose the path of collaboration, not confrontation, and prepare the way for a return to true bipartisanship in foreign policy in the years ahead.

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).
Do they dare to say 'impeach'?