I Miss the Constitution (Or "Hey, I Was Using That!")

The United States wishes to enter into a "bilateral agreement" with Iraq concerning security assurances and American troop presence. Traditionally, a bilateral agreement between two sovereign nations is called a "treaty." According to the U.S. Constitution, in order for the United States to enter a treaty, the president must sign it and two-thirds of the Senate must ratify it. This is part of something that used be known as "checks and balances."¹ Thus, one might be forgiven for presuming that in order for a treaty with Iraq to go into effect, it would require ratification by two-thirds of the Senate. But, according to the Bush Administration, you'd be wrong!

And what, you must be dying to know, is the justification this separation-of-powers-destroying argument? 9/11. Well, indirectly anyhow. More directly, it's the Authorization for Use of Military Force Against Iraq (AUMF). You may remember its passage as the moment Congress abdicated its Constitutional responsibilities related to the declaration of war. That was bad enough. But now the Administration is arguing that the Legislative Branch ceded not only the power to declare war (Art. I, s. 8, cl. 11) but also its Advice and Consent power.

Here's how the argument goes - In the AUMF, Congress provided:

"(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq."

Maintaining troops in Iraq is an essential component of maintain a stable Iraq and a stable Iraq is necessary to eliminate any threat from Iraq, which in turn is necessary to defend the national security of the United States. Therefore the AUMF authorizes the President used the Armed Forces in this way, which necessarily allows him to take steps (i.e. negotiate agreements) to do so.

That argument, of course, is bunk. On many levels, but one in particular. You see, no plausible reading of the text allows for this. The only power granted to the president is to "use the Armed Forces of the United States," which is well-short of any sort of express waiver of the "Advice and Consent" requirement (if, indeed, such a provision might be waived - that's an argument for another day). The logic of this argument would also support the conclusion that Congress doesn't actually need to approve funds for the military because that's a necessary component of complying with the AUMF. In other words, this logic is one of an unconstrained Executive Branch.

At the end of the day, the Administration's view is a misreading of the AUMF. But far worse is the fact that Congress passed a document that even arguably allows for such a reading. (As a reminder, here's the Senate roll call vote and the House roll call vote.)


¹ This was before it was was reinterpreted to mean that Congress writes "checks" to pay for the President's foreign expeditions, regardless of any negative "balances" in the country's pocketbook.