As elections loom, executive-legislative battle lines emerge

WASHINGTON -- The past year has seen a spate of incidents pitting the executive branch against Congress: The president's declaration that he's not bound by the torture ban; the revelation that the president has been ignoring a law requiring warrants to spy on Americans; the president's insistence that he alone can set the rules for the trials of accused terrorist sympathizers.

These, and many other disputes, have caused a flurry of concern among some Republicans in Congress, but no serious outrage. The House of Representatives, run by a highly disciplined GOP leadership team, has offered barely a murmur of resistance. Among Senate Republicans, only the Judiciary Committee chairman, Arlen Specter of Pennsylvania, and, at times, Lindsey Graham of South Carolina, have expressed grave concerns about President Bush's actions.

Specter's hearings have drawn attention to Bush's and Vice President Dick Cheney's concerted efforts to expand executive power.

However, little has been done to counter the administration's theories in the Republican-led Senate as a whole. Only after the Supreme Court declared that Bush had overstepped his authority in setting the terms for terrorist trials did the Senate stir into action.

Now, with the coming of Labor Day, attention is shifting to the fall congressional campaign, and to the possibility of a Democratic takeover of one or both houses of Congress.

And if the Democrats win a majority in either chamber -- a real possibility, according to many analysts surveying the political landscape -- the current brushfire of concern over Bush's interpretation of his own powers could become a conflagration.

The tinder would almost certainly be Iraq: Many Democrats are staking their hopes on a call for a gradual withdrawal of troops, whether or not there's a strict timetable.

Last week at a press conference, Bush asserted that troops would remain in Iraq for the rest of his presidency. He seemed to give no consideration to the possibility that the decision would be anything but his alone.

``We're not leaving so long as I'm the president," Bush declared.

The implications of the president's statement for the separation of powers went largely unnoticed: Although Bush is commander in chief of the military, Congress must approve wars and -- perhaps more to the point -- continue to fund them.

Nonetheless, the issue of whether the president or Congress holds the upper hand in wartime has been a constitutional question mark for decades. The Constitution's scant language on the subject -- giving Congress alone the power to declare war -- is widely viewed as unfeasible in the fast-paced modern world. Facing a threat, the president cannot reasonably wait for Congress to debate a war resolution.

Therefore, presidents have assumed the authority to order troops into battle without congressional authorization. When times are ripe, however, recent presidents have sought congressional approval for their actions. Open-ended authorizations like the Tonkin Gulf resolution during the Vietnam War and the Iraq resolution in 2002 have largely replaced traditional declarations of war. And Congress has retained the power to control the defense budget.

If Democrats win a durable majority in one or both houses of Congress, they would almost certainly move to force the president to begin the process of removing troops from Iraq. Since most Democrats do not support an immediate withdrawal -- or even a set timetable for a withdrawal -- there should be room for compromise with the White House. For instance, Congress could agree to back the war for the time being, as long as Bush presented detailed terms and conditions for a withdrawal.

But a president who declares ``we're not leaving," and who has made it his administration's mission to expand executive power, is unlikely to want to strike a deal with congressional Democrats.

And remembering how the public backed President Bill Clinton against the aggressive moves of the Republican House under Speaker Newt Gingrich, Bush might reasonably assume that the public would be on the president's side in a fight with a Congress.

The result could be a showdown that would either create a new bipartisan majority in favor of the war, or that would provoke a constitutional crisis if Congress voted to end a war that the president has no intention of ending. Such an outcome would test the patience of the country and the abilities of the Supreme Court, not to mention those of the Iraqi government and of the US allies.

But Bush's strong statements -- and some of the Democratic promises on the campaign trail -- make such a confrontation the likely outcome of a sweeping Democratic victory in the fall.

Peter S. Canellos is the Globe's Washington bureau chief. National Perspective is his weekly analysis of events in the capital and beyond.