Congress Can’t Micromanage Boots on the Ground

(Bloomberg Opinion) -- The U.S. Senate on Thursday passed a nonbinding amendment, drafted by Majority Leader Mitch McConnell, that contradicts President Donald Trump’s foreign policy on Syria and Afghanistan. It asserts that too fast a withdrawal from either country “would put at risk hard-won gains and United States national security.” Whether you agree or not, the amendment is well within the Senate’s power: It’s basically a message to the president, not a law that would require anyone to do anything.

In contrast, Representatives Tom Malinowski, Democrat of New Jersey, and Mike Gallagher, Republican of Wisconsin, have introduced bills in the House that actually attempt to use Congress’s power of the purse to block the Trump administration from withdrawing troops from Syria and South Korea.

Those bills look superficially constitutional, because they limit spending, a basic congressional power. But there’s reason to think the two House bills may not be so. Both interfere with the president’s power as commander in chief to make the tactical decisions necessary amid hostilities and in foreign policy.

The bills say that the executive branch may not use any of its funds to bring the number of U.S. troops in Syria below 1,500, or those deployed in South Korea below 22,000, unless the president meets certain conditions. Among them: that the secretary of defense, the secretary of state and the director of national intelligence must all certify to Congress that withdrawing the troops won’t undermine national security.

Ordinarily, there’s no problem with Congress telling the president how to spend money — or how not to, as I’ve maintained in arguing that Trump lacks the authority to build a border wall when Congress has implicitly told him he can’t spend any money on it.

But the president does have certain inherent constitutional powers. Relevant here are the president’s power as commander in chief to conduct military operations and his power over U.S. foreign policy.

The proposed bills interfere with both.

In military terms, the number of troops it has on the ground in Syria or South Korea is a classic tactical decision — the kind that needs to be made by military commanders, of whom the president is (literally) the commander in chief.

There’s no case law saying that Congress can’t try to dictate troop levels. But as Samuel Issacharoff and I argued at some length back in 2007, when Democratic lawmakers, including then Senator Barack Obama, were talking about legislating the end of the Iraq War, there is sound reason to think Congress lacks the constitutional authority to mandate levels of troop deployments.

Our basic argument, which is still sound, was that while “the Constitution gives Congress the power to declare wars, fund them, and oversee the way they are fought,” it doesn’t allow Congress to micromanage the battlefield. Hostilities, we said, “must be conducted under the president’s direction, not run by committee.” Congress can’t tell the president which hill needs to be taken — or where to put troops.

In the case of the Iraq War, Congress’s power was arguably greater than it is in the instances of Syria and South Korea. In Iraq, Congress had passed an authorization for the use of military force, the modern equivalent of the declaration of war. Declaring war is an inherent congressional power.

Not so in Syria and South Korea, where the president’s deployments of troops are solely the product of his powers as commander in chief and conductor of foreign policy. In those spheres, Congress certainly has a say. But it shouldn’t be able to use the power of the purse to force the president into following policies he doesn’t want to adopt.

Reducing the presence of troops in Syria and South Korea are archetypal exercises of presidential policy-making. The commander in chief moves the troops around. If he judges that we need more troops, he can add them. If he thinks we need fewer, he should be able to do that, too.

Trump’s moves on the Korean peninsula have everything to do with his negotiation with North Korea. And he has the inherent constitutional authority to conduct those negotiations effectively — without Congress thwarting his aims. That’s what it means to say that the president is in charge of foreign policy.

There’s one more problem with the proposed bills: They purport to hold the president hostage not only to Congress but also to his own cabinet members, who would essentially have to certify their agreement with his judgment. Congress shouldn’t be able to interfere with the executive branch in this way. When it comes to making military policy, the secretary of defense works for the president; the same is true for the secretary of state when it comes to foreign policy.

It therefore makes no sense that the president would be blocked from making troop withdrawals unless his own appointees, including the director of national intelligence, say it’s all right. That inverts the structure of the executive branch.

This is not a sentence I have written very frequently, but in this instance, Mitch McConnell has the right idea: Congress should criticize Trump’s foreign policy symbolically in nonbinding resolutions. It shouldn’t try to do his job for him.

In case you’re keeping track, in 2007 my view was that Congress couldn’t make the president withdraw certain number of troops if he didn’t want to; now my argument is that Congress can’t force the president to keep troops deployed when he wants to bring them home. What’s sauce for the goose is sauce for the gander.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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