The Senate has passed a resolution calling for the continued deployment of troops in Afghanistan and Syria, despite the President’s announced plans for withdrawal.Â
Sadly (from an academic perspective) the resolution is nonbinding, so it creates no actual constitutional controversy. But suppose Congress did direct continued deployment of troops in Afghanistan and Syria by statute (over the President’s veto). Does Congress have this power?
My answer is no. The question is similar to one debated by me and Professor Saikrishna Prakash, hosted by the Texas Law Review. (His paper is here; my response is here). Professor Prakash’s view was that Congress has essentially plenary power over military matters through a combination of the declare war power and the power to “make Rules for the Government and Regulation of the land and naval Forces.” My argument in response was that Congress does not have power over purely tactical decisions, such whether to attach a fortified enemy or whether to defend a threatened position.
Although it’s a closer question, I think my conclusion also extends to the decision to deploy troops. Congress does not appear to have an enumerated power to make such a decision. The declare war power relates only to the status of relations between the U.S. and its adversary. If Congress declares war (or authorizes the President to declare war), the President may use military force against the enemy; if it does not, then the President may not use force (unless the U.S. is attacked). But once Congress has declared war or otherwise authorized the use of force, the declare war power does not encompass management of the war effort.
The government-and-regulation power, in my view, is not a general authorization to Congress to direct military operations, but rather is a specific grant of power to establish standing rules on the conduct of military personnel. (This argument is developed further in my Texas Law Review essay). A substantial element of this argument is that under the Articles of Confederation, Congress had both the power of “making rules for the government and regulation of the said land and naval forces” and the power of “directing their operations.” (Art. IX, para. 4). Thus, these were understood as two distinct powers. And the former power, but not the latter, was carried over to Congress by the Constitution. The power of “directing their operations,” under the new Constitution, presumably went to the President as Commander-in-Chief.
As a result, Congress may declare that the U.S. is in a state of war with ISIS in Syria and with the Taliban in Afghanistan (leaving aside the issue that both ISIS and the Taliban are nonstate actors, and the fact that Congress has not actually made such a declaration in either case, but only an authorization to the President to use force as appropriate). But Congress does not have power to direct the President to make any particular deployment of troops as a result of the state of war.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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