Opinion (Jeffrey Rossen): In Wartime, Who Has the Power?

The Constitutional Convention took place from May 25 to September 17, 1787. Ben Franklin attended, and George Washington presided. Thomas Jefferson and John Adams made their individual contributions by letter from Europe. Upon conclusion, Ben Franklin famously said, "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them... I doubt too whether any other Convention we can obtain, may be able to make a better Constitution... It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies."

THE Constitution seems relatively clear. The president is the commander in chief, and he has the power to deploy troops and to direct military strategy. Congress has the power to declare war and can use its control over the purse to end a war. But it has no say over how the war is actually prosecuted.

That poses a problem for Congress, as it debates the course of the Iraq war. Democratic proposals to check President Bush’s increasing unpopular war range from Senator Barack Obama’s “phased redeployment” of all combat troops out of Iraq by March 3, 2008, to Representative John Murtha’s attempts to impose specific standards for the training and equipping of troops.

Regardless of how these proposals fare politically, they raise serious constitutional questions that could affect not only the conduct of the Iraq war, but also the balance of power between Congress and the president in wartime.

Legal scholars — both critics and supporters of the Iraq war — say that if Congress tries to manage the deployment and withdrawal of troops without cutting funds, the president’s powers as commander in chief would be encroached, perhaps leading to a constitutional confrontation of historic proportions.

Read the rest at the NY Times