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 k / o
                                       politics + culture

Sunday, April 29, 2007

the Iraq Supplemental and the fallacy of "implied constraint"

Big Tent Democrat at Talk Left did a breakdown of the legal and constitutional issues raised by my summary of the Pelosi "Bloggers Conference Call on the Iraq Supplemental".

It is very much worth a read.

I have three thoughts:

First, we are very much in the midst of an ongoing constitutional conflict. I think it's critical to understand the source of this conflict. George Bush, after elections in which the voters rejected his policy in Iraq, proceded with his "surge" in direct defiance of that election and every subsequent opinion poll. Bush took the exact opposite direction the voters indicated.

In my view, for as long as this situation holds...the President versus the people...that is the fundamental conflict in American political life. Now, the fact that that conflict expresses itself in terms of "Congress versus the President" makes Big Tent Democrat's analysis even more important. The constitutional battle between Congress and the President is the expression of this more fundamental disconnect...the President versus the people...only to the extent that the Democratic majorities make it stick with the force of law. Congress must stand up for the will of the voters in the elections of 2006. Congress must call this President's Constitutional bluff.

Point two, Big Tent Democrat is exactly right to point out that the fundamental Congressional power here is the "power of the purse." Big Tent Democrat and MaryB2004 have made this point clear: the idea that Congress can "take the President to court" over whether he follows any optional framework in the eventual Iraq supplemental is a fallacy; it does not hold. It is merely "implied constraint." Pelosi needs to hear this from the blogs. Congress gives Bush the money or it doesn't. There is no fall back to the Courts if Bush chooses to ignore "optional and discretionary" language in the Iraq supplemental.

The upshot of this is that Democrats need to understand this reality in the showdown over the veto and the "next bill." There is either "hard language" in the bill...ie. the bill provides funds in a limited and controlled way (ie. for a shorter period of time or with definitive language)...or the bill is more political theater than responsible legislation.

Nancy Pelosi, in my view, is banking on the "political" aspects of this process. ie. Speaker Pelosi, in using language counting on "the courts," really is implying the "court of public opinion." She must be thinking that whatever Bush's obligation to follow the framework of the Iraq bill, if he does not follow the language that Congress provides him, the GOP will be under such enormous political pressure in the court of public opinion that the GOP will cave. That, in a sense, was the bottom line upshot of the blogger's conference call.

There was an interesting moment, which I did not mention in that MyDD piece, in which Speaker Pelosi talked about how, at the time of the outset of the war in Afghanistan the President and the GOP very much did not want a bill from Congress. They felt that the President had all the authority he needed. Congressional Democrats insisted on getting a bill because having some bill, any bill, implied some constraint on the President's authority. If that is the mindset here, a mindset of "implied constraint" then it is critical we put pressure on the Democrats in Congress to go beyond that view. Implied constraint on this President does not cut it. Implied constraint is NOT what the voters voted for in 2006.

Point three, the blogosphere needs to get out front and explain the case for using the "power of the purse." Whether that means rallying behind Senator Feingold, or effectively and persuasively creating a framework through which centrist Democrats can stand by a "hard vote" to use the power of the purse to reign in the President, this much is clear: this President, in rejecting the will of American voters and undertaking the Surge chose a course of action that would provoke this very situation. The Constitutional conflict is his, not ours.

It is the job of Democrats. Heck, it's the job of every last one of the people's representatives in the House and the Senate, to do the bidding of the people. That means using the power of the purse to create a Constitutional, legal check on this President. That is the direct means of reigning in this President.

We have to face reality here. That stance will mean fighting the noxious bromide that using the power of the purse is "cutting off funds for the troops." That is where we are headed. That is the task at hand.

Speaker Pelosi may well be right that the political pressure mounting over the next months will prove significant. Perhaps her position in that conference call reflects her experience with persuading members to go along with this initial bill. That is no substitute for Congress doing its job and using its Constitutional power to reign in this President with the unquestionable force of law. We must make this clear.

Implied constraint, with Bushco, is no constraint at all.


  • Thanks for the post K/O.

    I hope you get this message.


    By Anonymous Anonymous, at 6:40 PM  

  • I hope you get this message out I mean.


    By Anonymous Anonymous, at 6:42 PM  

  • the democrats have got to fight harder on this thing than they have done on anything since stopping bork. it is beyond clear that this president has no use for law, for the constitution, and for the will of either congress or the people. he will disregard anything that gets sent up there, bet on it.

    thus, the democrats have got to play hardball, not by watering things down and assuming the courts can do something moderate down the line, but by using political theatre, paid attack ads, and the like to really force the republicans NOW to either hang bush and the war around their own necks, or save their own skins and cut their losses with this president.

    as mike gravel said, force a cloture vote every day on the war. force the republicans to vote for the war, and then run ads and hold rallies and work with grassroots activists to lay seige to their offices back home for voting for the war. and then bring it up again, and again, until enough of them get tired of it.

    if bush vetoes a bill, give him a tougher one. match his escalation with escalation. and for god's sake, don't rule out impeachment, the only legal court that matters for a president.

    playing this as just another campaign issue for 2008 (like the democrats have done for decades with universal health care and now the supreme court as well) risks losing the very republic in the interim. bush is a far bigger problem than pelosi realises. even if her heart is in the right place.

    By Blogger 無名 - wu ming, at 12:49 AM  

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