How to fix the Iraq funding bill 

Congressional leaders in both parties would do well to read closely the letter they received Wednesday from former U.S. Attorney General Ed Meese, law professors from the University of California at Berkeley, Pepperdine University, George Mason University and George Washington University, and constitutional law experts from respected law firms and nonprofits. Their message — the Iraq emergency supplemental funding bill being voted on in the House today is unconstitutional on its face.

The measure contains provisions that place limits on troop deployments in Iraq, establish detailed timetables and benchmarks for their operations and require that complex training and equipment requirements be met prior to individual soldiers, airmen and seamen being assigned missions. These provisions redefine and subvert the Constitution’s clearassignment to the president of the duties of the commander in chief, according to Meese and his fellow signers.

During the Constitutional Convention, they explain, "... the Framers changed the language of Art. I, sec. 8, cl. 11, in part to make clear that the president may ‘engage in war’ when necessary, whether Congress has declared one or not. Moreover, the power to make rules for ‘the government and regulation’ of military forces is the power to enact a general set of laws of military justice, analogous to the Articles of War enacted by the British Parliament. There is no convincing legal support that Congress may use this power to dictate operational commands."

Further, it will be an egregious violation of the separation of powers doctrine if Congress successfully usurps core duties of the president as commander in chief. As the letter signers note: "The commander-in-chief power can no more be defined by Congress than the president can unilaterally define what the Congress’s spending power means (e.g., by issuing line item vetoes or impounding funds that are otherwise lawfully appropriated)." Put simply, the Constitution creates one commander in chief in the White House, not 535 armchair generals in Congress.

Here’s a two-step approach to fix the Iraq supplemental: First, congressional leaders should strip out the provisions regulating where, how and for how long U.S. troops can be deployed. If Congress wants to defund the war, that’s a different issue. Nobody questions that Congress has the constitutional right to do so if a majority so votes.

Second, strip out the $24 billion in pork barrel spending Democratic leaders are using to buy votes of wavering members and help special interests. Democrats regained the majority in Congress in November in great part because Republicans couldn’t control their appetite for earmarks and other pork-barrel spending. So why are Democrats now putting billions in the Iraq supplemental tohelp shrimp growers, peanut storage facility owners, commercial livestock operations and legions of other special interests with no connection to the war effort? If Democrats won’t cut the pork, who could blame voters for concluding there’s not a dime’s worth of difference between the two parties?

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Staff Report

Staff Report

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A daily newspaper covering San Francisco, San Mateo County and serving Alameda, Marin and Santa Clara counties.
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