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Congress Has Power to Limit Iraq Troop Increase, Duke Constitutional Scholars Say

Four law professors are among a group of scholars who wrote to congressional leaders on Wednesday

Congress has a number of powers it could use to affect the president's proposed troop increase in Iraq, if it chose to do so, say four Duke University law professors who are among a group of scholars who wrote to congressional leaders on Wednesday.


 Duke law professors Erwin Chemerinsky, Walter Dellinger, H. Jefferson Powell and Christopher Schroeder, along with a group of other leading constitutional scholars, argue that Congress' constitutional authority "is more than ample for Congress to give legal effect to its will with respect to the troop increase." The group's letter outlines tools available to Congress, how the Supreme Court has defined the scope of Congress' power to limit the commander-in-chief and what historical precedents exist.


 "Congress may limit the scope of the present Iraq War by either of two mechanisms," the letter reads, in part. "First, it may directly define limits on the scope of that war, such as by imposing geographic restrictions or a ceiling on the number of troops assigned to that conflict. Second, it may achieve the same objective by enacting appropriations restrictions that limit the use of appropriated funds. Indeed, the reason that the Constitution explicitly limits appropriations for the Army to two years is in order to ensure that Congress oversees ongoing military engagements.


 "The Constitution's drafters understood the immense national sacrifice that war entails. Moreover, they understood that during times of war presidential power tends to expand. For these reasons, the Constitution assigns Congress the power to initiate war and to fund and define the parameters of military operations."


 The letter was sent to Senate and House majority and minority leaders and Judiciary committee chairs and ranking members.


 Schroeder, a former assistant attorney general in the Office of Legal Counsel and chief counsel to the Senate Judiciary Committee, will also take part in a briefing of congressional staff on the scope of Congress' power to limit the president's actions in wartime. The briefing, on Friday, has been organized by the American Constitution Society.

"The issue of congressional authority to influence the troop levels in Iraq has become an important part of the national debate about President Bush's proposal, and a wide range of opinion about that authority has been expressed by numerous elected officials and others in the last several days," said Schroeder, Charles S. Murphy Professor of Law and Public Studies and director of Duke's Program in Public Law. "We believed we could contribute constructively to the congressional and national conversations by explaining our understanding of the authority that Congress does possess under the Constitution."

Dellinger, Douglas B. Maggs Professor of Law who served as assistant attorney general of the United States and head of the Office of Legal Counsel from 1993 to 1996, wrote an additional letter to congressional leaders contradicting commentators who cite one of his memoranda to support the view that Congress lacks power to oppose the president in wartime.

"Throughout my tenure as an advisor to the president I consistently acknowledged the authority of Congress to legislate with regard to the scope and duration of military action -- the question that is at issue here," he wrote.