February 16, 2007

Biden to Introduce Legislation to Rescind the Authorization to Use Force in Iraq

Carroll Andrew Morse

Senator Joe Biden plans to introduce legislation rescinding the President’s authorization to use military force in Iraq (h/t RI Future)…

Thursday, Senator Joseph R. Biden, a Delaware Democrat who leads the Foreign Relations Committee, said he would work to repeal the 2002 war authorization vote in an effort to close down the war.
Whether you agree with the action or not, this is on the Constitutionally strongest path that Congress has for removing our troops from Iraq.

Unanswered questions at this point: As part of his bill, will Senator Biden include instructions to the executive to negotiate a formal surrender, to reduce the likelihood that our troops will come under attack as they withdraw if his bill is enacted? Or does he simply trust terrorists to honor a cease-fire he hopes to unilaterally impose?


I was able to ask Andrew C. McCarthy, distinguished Federal prosecutor and National Review Online contributor, if Senator Biden’s proposal requires a Presidential signature to take effect. Congress is the sole branch of government charged with the power to declare war. Doesn’t that also imply that Congress has the power to un-declare one too?

Mr. McCarthy believes, because the authorization to use force against Iraq was less than a formal declaration of war, that a rescission of that authority will not assume the force of law unless first signed by the President (or approved by a 2/3-majority override vote) …

I think there is a pretty clear answer in the Iraq resolution context: the resolution is not a declaration of war, however similar the two may be. Resolutions are like other bills, they have to be submitted to the president to sign or veto. In fact, the Iraq resolution did not get the force of law until Bush signed it on October 16, 2002. Biden's proposed rescission resolution would also be like any other bill — in the unlikely event it ever passed both houses of congress, the president would have to sign or veto it.

This would be an interesting question, though, if congress had formally declared war against Iraq. I believe we have only had five declared wars in American history, and congress has never tried to "un-declare" before. Since the constitution does not address recissions of declarations of war, I assume they would have to be treated like ordinary bills — i.e., they'd have no effect unless the president signed them or congress overrode a veto. But I confess that this is just an assumption — I don't know what would happen.

If I may pick an important nit here, Congress has undeclared all of the declared wars in American history, by ratifying the peace treaties that ended hostilities. This fact serves reminder that once a war begins, it doesn't end until both sides agree, one way or another, to end it.

The current Congress doesn’t seem to grasp this reality. They believe they can unilaterally declare that a shooting war is over, even while the enemy shows no inclination to stop fighting. But does anyone really believe that Islamists would react to passage of something like the Biden proposal by laying down their arms and pursuing their ends by peaceful means?

Ultimately, measures like the Biden proposal, or cutting off funding to troops in the field, or imposing a troop cap -- all which seek to “end the war” by pressuring our own side while ignoring the existence of the enemy -- cannot end a war. They do nothing to make radical Islamists less likely to use violence to get what they want. Such measures can only force America into retreat and allow the enemy to advance.

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whether you agree with biden or not on this, you have to give him credit for standing apart from those spinally challenged republicans and democrats who are trying to sell their toilet paper non-binding resolution as a meaningful course of action.

given a vote, i'd vote against a repeal of the war authorization, but politically this is strong move by biden.

Posted by: johnb at February 16, 2007 11:59 AM

Joe Biden is running for president. That is all this is about. After his Obama comment, and his otherwise lackluster career as a politician, I'm stunned that anyone takes anything the man says seriously.

As for declared vs. undeclared wars, besides every "war" since World War II being "undeclared," there is also the matter of the inherent authority that the President has as commander-in-chief of the armed forces, the additional powers given to him by the War Powers Act, as well as the original authorization to go to war that was approved in 1990-1991 to conduct operations in the Gulf region against Iraq. What I don't think many don't understand (apparently including Biden) is the the president would have had the authority to resume hositilities in Iraq without the 2002 resolution. If the 2002 resolution were ever repealed (and it won't be), it would be moot, as the president would still have the authority deriving from the original 1990/1991 resolution. The first Gulf War never technically ended, nor was there a treaty signed to end it.

Posted by: Will at February 16, 2007 5:01 PM

Joe Biden is a tool, no question, but I like the idea of this bill. However, assuming that it passes and becomes law, nothing obliges the military to drop their weapons and be killed, Mr. Morse's rhetoric about a "cease-fire" to the contrary. If the war were to end by Congressional fiat, the President would be obligated to withdraw the troops, but would clearly be empowered to do so in a manner consistent with his authority as commander-in-chief.

Posted by: mrh at February 16, 2007 5:37 PM

On a technicality, we're not actually at war with Iraq any more. I don't think any resolution either way amounts to a hill of beans in this case. Our military's role over there now is to train the Iraqi's on how to secure themselves from the insurgents and the terrorists. Congressmen can howl and rant all they want and they wouldn't have the power to budge those troops out of Iraq because the CIC can send troops where ever he wants to in the world. They might just happen to be in Okamachokee Africa and if they come under fire they are authorized to use deadly force in defense. It would be the same in Iraq. All that has to happen is for the CIC or the Pentagon to declare that our forces are in a joint military training exercise with the Iraqi Army and there you go. They can sit there as long as it takes to get the job done.

Posted by: smmtheory at February 16, 2007 10:08 PM

"spinally challenged republicans and democrats "


And why is it a principled change of stance to stop supporting the action in Iraq (Hillary, John E, etc) but an opportunistic flip flop to change your mind about abortion (Mitt)?

Posted by: SusanD at February 16, 2007 10:15 PM


I must disagree that the commander-in-chief clause of the Constitution gives the President unlimited authority to send troops wherever he wants. Article I makes it equally clear that it is the Congress (without the approval of the President, by the way) that declares war. In other words, the use of American military force to advance against an enemy for a sustained period of time requires the express authorization of Congress.

What Congress doesn’t have the right to do, legally or morally, is impede their own side from winning, once they’ve given authorization to the President to attack an enemy.

p.s. I do agree that you can make a strong case that the original authorization to use force in Iraq has basically expired, because the Iraq it was directed against has expired. If the Democrats in Congress had any strategic clue as to what they wanted to do in the world, they would be focusing on issues like that, instead of trying to simply undermine the Prez in as high a profile manner as possible. But the Dems insist on sticking as closely as they can to their McGovern-era script of punishing their allies and ignoring their enemies.

Posted by: Andrew at February 17, 2007 11:15 AM

Hey guys, did you notice that Sen Jack Reed will be on Meet the Press tomorrow (Feb 18)?? You know how Russert can be: ROLL TAPE. He should catch Reed in his overtly incosistent stance on sending troops to Iraq. He wanted it before, and he's will Hillary and Biden now. Well, well well. But it won't matter to RI voters who look at the seat as a monarchical right of passage for some - usually Democrats with four letters in their last name.

Posted by: Chuck at February 17, 2007 7:57 PM

Well, perhaps that clause does not give him the power to wage war, and sending the troops into a sovereign country where they may be rejected by the government of that country would be outside of the scope of that clause. But in this case, the recognized government of Iraq does not reject the presence of our military, so the Commander in Chief has every right to keep them there.

In another case, President Clinton specifically when against congressional will a couple of times to exert military force by bombing Slobodan Milosevic, and even some training compounds in Afghanistan. It would be pretty silly to name the President the Commander In Chief of the military and not allow him the latitude to actually command the military.

Posted by: smmtheory at February 17, 2007 8:46 PM
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