Law Profs Debate Executive Power

Two law professors grappled over which branch of the government should have the final say in strategic military decisions—the legislative or the executive—at a panel on Friday at Harvard Law School (HLS).

The talk took place just one day after the Senate rejected a resolution requiring the President to withdraw U.S. forces from Iraq within a year. In the debate leading up to the vote, the White House had said it was inappropriate for Congress to weigh in on battlefield decisions.

Legal luminaries Professor of Law David J. Barron ’89, a former Crimson president, and soon-to-be Harvard Law professor Noah R. Feldman ’92 took generally opposing views at “How Can Congress Stop the War—And Should it be Able to?”—with Barron siding with Congress and Feldman leaning towards the Commander-in-Chief.

The discussion centered on the ostensible conflict between Article I of the Constitution, which gives Congress the power to “regulate and appropriate” the U.S. armed forces, and Article II, which bestows the title Commander-in-Chief upon the President. The U.S. strives to achieve a balance of powers—one that has commonly been interpreted to mean that the President controls authority over tactical decisions while Congress possesses strategic oversight.

Barron emphasized legal precedent and history to show that it would not be unconstitutional for Congress to take a more active role in military decisions, even to the point of ordering “don’t take this hill or that hill.” He added that giving Congress this prerogative was unlikely to provoke the “micromanagement” feared by critics, noting that it had no historical precedent and stressing the difficulty of mustering enough votes to bypass a Presidential veto.

But Feldman, who was appointed in 2003 by the Bush administration to help draft the Iraqi constitution, emphasized Presidential primacy, saying that precedent was “not determinative” in the context of modern warfare, citing differences in scope, field communication, and feedback mechanisms that have fundamentally transformed the nature of battlefield command—certainly since the penning of the Constitution.

More specifically, on the issue of President Bush’s order for a surge in troops, Barron thought Congress would be well within its limits to cap the number of non-deployed soldiers Bush could add to the field of combat.

Feldman disagreed, again pointing to the expanded scope of modern war. “The realities of contemporary warfare involve the regular shuttling in and out of troops during the battle as part of both the strategic and tactical goals of successfully fighting the war,” he said, concluding that a troop cap would impinge upon the abilities of the president to carry out his duties as Commander-in-Chief.

“There’s politics and our opinions and what’s tactical and what’s prudent but then there is what’s possible, and that all comes within the framework of the constitution,” said first year law student Saritha Komatireddy ’05, who attended the event. “What is a really fundamental question is what is constitutionally viable.”

The American Constitution Society (ACS) at HLS sponsored the discussion. Organizers said the widespread news coverage last summer of President Bush’s proposed troop surge in Iraq prompted them to work with Barron to create the event.

“These are really hard issues and they were very well presented and very well defended on both sides,” said ACS Vice President Matthew A. Macdonald. “My mind is not made up yet.”

Feldman, currently the Goetz Professor of Law at the New York University School of Law and an Senior Adjunct Fellow at the Council of Foreign Affairs, will be joining the HLS faculty in the fall of this year.