Congress can take back their power in a lot of ways. The biggest step as indicated before, is to get a lot more ballsy about their confrontation with the executive over this power. I think that Kennedy's bill to strengthen the power of the purse is a helluva start.
One way to think about constitutional law and the Constitution itself is as interpreted by all three branches and not just the judiciary. The Supreme Court only decides around 75 cases per year, and not all of them even deal with constitutionality. Moreover, jurists have devised a doctrine, Political Question Doctrine, to avoid deciding questions which are thought to rest more firmly in another branch's perview. It is this doctrine that this administration has taken advantage of so fully. They consider the executive to be the only organ of military and foreign policy.
The constitution is not so clear on the matter. While the executive is called the commander-in-chief of the armed forces, it is clear that the war powers were certainly ones that the founders thought should be divided. Thus, the power to declare war rests with the Senate, the power to fund wars rests with the House, and questions of basic rights of combatants can be decided by the lower courts and the Supreme Court in many circumstances.
The executive is not the only branch that can and should think expansively about power. The legislative should not pander to the will of the executive in any way. They should be bull-headed and jealous about their roles in using our military arm. If they are not they have failed to provide the tension among branches, which no one will deny is constitutionally prescribed. This notion is butressed by the fact that military responses should be last resorts, and so it is no problem that the use of force should be distributed and hard to access.
The executive is a major organ in military and foreign policy, but a competant President uses that power in diplomatic ways. A competant President listens to our old allies when considering the use of force. Mark Shields' response to the President's address two nights ago pointed out that nearly everything which the European allies, who would not join in the military venture in Iraq, predicted has come true. Civil War. Quagmire. Military disaster. Pretty sobering stuff.
In this age, the legislative is bogged down by the struggle between parties, but as we are beginning to see, they have a common cause against the executive. Unsurprisingly, the President is dropping in popularity to around 32% today. Perhaps that will provide the impetus to change more hard Republicans minds about this nightmare executive power. |
