Congress Aims to Take Back Constitutional Powers

As America anticipates the official arrival of the Obama presidency on January 20, the power grabs and ballooning executive privileges of the Bush administration may seem far behind us. However, staving off the normalization of those abuses has remained at the forefront of several Congress members' legislative agendas.

Congress took little initiative to rein in Bush's excesses throughout his administration, and now, some members worry that his vast expansion of executive powers could set a dangerous precedent for generations to come. Unless Congress formally rejects Bush's generous interpretation of the role of the president, they say, the system of checks and balances could be permanently disrupted. Foremost on the list is one of Bush's most blatant unilateral actions: his recent signing, with Iraqi Prime Minister Nouri al Maliki, of the US-Iraq security pact without consulting Congress. The pact could keep US troops in Iraq until the end of 2011.

Rep. Barbara Lee (D-California) has introduced - and soon plans to reintroduce - a resolution that would delegitimize the Bush-Maliki security agreement in the eyes of Congress, according to a spokeswoman for Lee's office. It would also reaffirm Congress's role in the formation of war policy.

"[The security pact] is a seriously flawed agreement which illustrates perfectly the necessity of Congressional review and approval of any agreement concerning the United States Armed Forces and the security of Iraq," said Lee in a statement on the resolution. "An agreement to commit American troops to the defense and security of another country is a major commitment that must have the support of the American people, which can only be reflected by the Congress of the United States."

Bush presented the US-Iraq pact as a Status of Forces Agreement (SOFA), which does not need the approval of Congress. However, this "SOFA" goes beyond the scope of all previous SOFAs, in that it authorizes military operations. Under the Constitution, Congress has the sole power to wage war. Lee points out that the "SOFA" also subjects US military operations to the "approval of the Iraqi government" and places US contractors under the jurisdiction of Iraqi courts. Historically, the president has needed the Senate's ratification to place US troops under foreign control; Bush's action is a major breach, according to Lee.

Several bills have been introduced in Congress to address Bush's overstep in signing the pact, and a notable set of hearings in the House Foreign Affairs Committee investigated the topic. Yet, responding as it did to most of the Bush administration's power grabs, Congress ultimately let the "SOFA" designation get by.

"Congress and the media have generally accepted the Bush administration's categorizing of [the pact] as a SOFA," Steve Fox, director of the nonpartisan American Freedom Campaign, told Truthout. "To me, it demonstrates a complete failure on the part of Congress as an institution to defend its constitutional powers."

This complacency could cost future Congresses - and future generations of American people - quite a bit of leverage, according to Fox.

"A failure by Congress to signal its objection to this agreement will create a potentially irreversible shift in the balance of power to the executive branch," Fox said. "This lack of action will set a precedent with respect to what terms are allowed under a SOFA and, therefore, do not require Congressional approval. Perhaps, the Supreme Court might someday rule that the executive branch's power is not so extensive, but Congress should not create a precedent on its own that it someday needs the court to reverse. Congress must exert its power now."

Lee's resolution does not officially negate the Bush-Maliki pact. Even if it passed, the agreement would still be legally binding under international law, Berkeley Law Professor Oona Hathaway, who has testified at several hearings regarding the pact, told Truthout.

However, the bill would advocate that Congress use the legal means in its power to resist fulfilling the demands of the agreement, and to prevent the executive branch from sealing similarly broad-ranging agreements in the future without consulting Congress. Lee's resolution refers specifically to Congress's power of the purse, stating that "is neither legally nor morally bound or obligated to appropriate any of the funds necessary to carry out the terms of the agreement."

Additionally, the resolution calls for the House of Representatives to hold hearings examining the security pact before authorizing or funding it.

The prospect of withholding funding for the pact may face both political and legal barriers, according to Hathaway.

"It would place the United States into violation of its international legal obligations - and could lead to a constitutional crisis," Hathaway said. "In my view, a much better option is to step back from this agreement to think more generally about how the United States makes its international agreements."

Hathaway suggests that, in order to put the security pact on secure legal footing and enforce the involvement of Congress in confirming international treaties, Obama could submit the agreement to Congress for approval. The very act of consulting Congress could demonstrate an end to the Bush era of executive power abuse.

Another route might be an expansion of the Case Act, a law passed in the 1970s, which requires that the president notify Congress of any executive agreements he has concluded. Hathaway proposes that the law be revised and enhanced, increasing transparency and Congressional influence.

"I do not favor requiring every single executive agreement to be individually approved by Congress - that would be too cumbersome," Hathaway said. "But the current process is much too lax. I am hoping that Congress and the Obama State Department will put some energy into examining the variety of alternatives that exist in between these two extremes."

Meanwhile, Congresswoman Lee's office plans to continue to push for more Congressional involvement on Iraq in the new year, reassessing old legislation and perhaps introducing new bills aimed at withdrawal, according to her spokeswoman.

Last week, Sen. John Conyers and Congressman Bill Delahunt introduced another piece of legislation intended to reclaim Congress's role in checking executive authority. The plan calls for a national commission to investigate the Bush administration's potential war powers abuses.

"The American people deserve a complete and objective accounting of the many policies approved by President Bush as unreviewable war powers," Delahunt stated upon introducing the legislation.

Maya Schenwar is an editor and reporter for Truthout.

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