Congress could be last voice on troop surge
Constitution backs budgetary power
WASHINGTON -- If Congress blocks funding for a surge in troops for Baghdad, as some Democrats are considering, President Bush would have little choice but to follow the law, legal specialists said yesterday.
Bush and Congress have sparred before over whether the president's war powers allow him to authorize wiretappings or evade bans on torture, but legal specialists said there is far less ambiguity when it comes to spending money: The Constitution explicitly makes Congress responsible for appropriating funds.
Yesterday, Bush and Democratic leaders inched closer to a showdown over a proposed troop increase. After meeting with the president, Senator Gordon Smith , Republican of Oregon, confirmed that Bush plans to send an additional 20,000 troops to Iraq.
Senate majority leader Harry Reid , Democrat of Nevada, and House Speaker Nancy Pelosi said they would consider blocking funds for such a move.
This year's Iraq appropriation has already been approved, so Democrats would have to pass a separate bill capping the number of troops at the present level.
Reid said yesterday that he would "look at everything" to block the surge, except for taking funds away from troops already deployed.
Senator Edward M. Kennedy, who also met with Bush yesterday about the war, added Democrats were considering using the purse strings to prevent Bush from ordering a surge. "It's something that's under discussion," said the Massachusetts Democrat.
If Democrats were to pass legislation blocking the troop surge, Bush would almost certainly veto it, which means that Democrats would have to win over many Republicans to muster the two-thirds vote needed to override presidential vetoes.
Already, Republican leaders are preparing to rally their own members to oppose any effort to block funds.
Senate minority leader Mitch McConnell , a Kentucky Republican, has criticized the suggestion that Congress could block the troop surge, saying that lawmakers were "incapable of micromanaging the tactics in the war."
But Congress once used its budgetary power to pressure President Nixon to agree to halt certain bombing campaigns during the Vietnam War and could use it again to block a troop surge, legal specialists said yesterday.
"It would be within Congress's budget power to say the money can't be used in a particular way," said Richard Fallon , a Harvard law professor who cautioned that such a move would be extremely unlikely to succeed, considering the partisan divide on the war.
Louis Fisher , an analyst for the Library of Congress and author of "Presidential War Power," said in an interview that if Congress specifically bans using money, the president would have few legal recourses.
"Money is appropriated for specific purposes, and if you use it for something it's not appropriated for, that's illegal," he said. "The president has certain discretion to transfer money, but that's not enough to fund this war, and Congress could always say that no transfer authority shall be used to frustrate the purposes of this legislation."
Legal scholars normally sympathetic to the executive branch agreed that Congress could stop the war by choking off funding.
John Yoo , a Berkeley law professor and one of the chief architects of the Bush administration's aggressive stance on the treatment of detainees at Guantanamo Bay prison, said that the power of Congress over the budget was absolute, to such an extent that lawmakers could end the war altogether if they chose.
"It's perfectly constitutional and legal for Congress to cut off funds for any war it doesn't want the country to fight, and it's done that before," Yoo said in an interview , referring to the cutoff of funds for Vietnam that Congress approved in 1973.
Congress was unable to muster a veto-proof two-thirds vote to cut off funds for all military action in Southeast Asia by Aug. 15, 1973, and Nixon did not challenge the law. All bombings halted in Cambodia by Aug. 14.
"Congress has complete control over the power of the purse, and it can simply say that no funds can be spent in Iraq if it wants to," Yoo added. "Congress cuts funds off for programs it doesn't like all the time."
Still, there seemed to be only a limited appetite for a showdown with the White House just days into a new congressional term.
While holding out the threat of using the budget to block the surge, some Democratic lawmakers said they hoped to persuade Bush to back down without resorting to extreme measures.
Material from Globe wire services was included in this report. 