Hope Yen of the Associated Press reported today:

President Bush will address the nation at 9 p.m. EST Wednesday about his new approach for the war in Iraq , the White House said. Bush is expected to announce an increase of up to 20,000 additional U.S. troops.

Yen goes on to report House Speaker (yay!) Nancy Pelosi’s announcement that Congress might not approve funds for military escalation in Iraq, and that Pelosi and Senate Majority Leader (yay!) Harry Reid sent a letter to Bush last week that said it was time to begin withdrawing troops from Iraq.

However,

Sen. Joe Biden, chairman of the Senate Foreign Relations Committee and a 2008 presidential candidate, said increasing troops would be a “tragic mistake.” But he contended Congress was constitutionally powerless to second-guess Bush‘s military strategy because lawmakers had voted to authorize the commander in chief to wage war.

I think that Biden is wrong on the Constitutional issue, and have said so before.

Shaun Waterman writes for the World Peace Harold:

“It’s a fundamental constitutional principle that Congress can initiate and regulate war,” law Prof. Neil Kinkopf of Georgia State University told United Press International.

Kinkopf, a former Clinton administration Justice Department official who worked in the Office of Legal Counsel, authored a paper for the American Constitution Society last week arguing that Congress has the power to stop President Bush sending additional troops to Iraq — a move many expect him to announce this week.

I think Biden is hiding behind the Constitution to avoid the political risk of confronting Bush directly. Personally, I think he’s taking the greater political risk by being a wuss. Biden recently announced he is a candidate for the presidency in ’08. Does he seriously think he’s going to survive the primaries by being a Bush appeaser?

But let’s stick with constitutional issues for now. There’s no question that, over the years, the separation of powers between Congress and the White House vis à vis war have been corrupted considerably. Alexander Hamilton made it clear (well, pretty clear, given the 18th century English) in Federalist #69 that the President’s role of commander in chief had limits (emphasis added).

The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. …” … The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.

Hamilton’s views on the CinC role as expressed in Federalist #69 and elsewhere were that the President was something like a supreme military commander, coordinating the forces of the army, navy, and militia (which would morph into the National Guard, but that’s a long story) during time of war. Remember, the Founding Guys were preparing to tap George Washington for the CinC position. There was also some discussion among the FG’s about possibly relieving a president of the CinC job if he proved not to be too good at it. Unfortunately, they didn’t put that into writing.

Findlaw has an annotated Constitution online that I find to be an excellent resource for understanding constitutional issues. Here is the annotation for the duties of the commander-in-chief addressed in Article II, Section 2, first paragraph. The annotation provides a thumbnail history of how the CinC role became expanded and enlarged over the years. Much of this enlargement came about to enable the President to respond to emergencies — invasions and insurrections — in a timely manner, without having to convene Congress and have a debate. There were other reasons for tilting the war powers toward the executive branch that Findlaw discusses that I’m not going to review here.

Now, compare and contrast to the war powers of Congress in Article I, Section 8, paragraphs 11-14. The Findlaw annotation suggests there was considerable disagreement among the authors of the constitution about exactly who was responsible for what. Congress alone has the power to declare war, but court challenges arising from the Civil War brought about a SCOTUS decision that a state of war could exist without Congress declaring it. The question that haunts us to the present day is, “whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.”

Skipping ahead, we get to the War Powers Act of 1973. Dahlia Lithwick explains,

Under the War Powers Act, the president has 90 days after introducing troops into hostilities to obtain congressional approval of that action. It looks good on paper, but presidents have generally ignored the War Powers Act, citing Article II, Section 2 as their authority to send soldiers into combat.

But that takes us back to the original separation of powers issue — who gets to decide when the nation should commit troops? Although the Constitution doesn’t spell this out specifically, I do not believe the authors of the Constitution intended the President to have the power to send troops wherever he likes as long as he likes at his discretion.

We’re hearing a lot of noise from the pundits about the “power of the purse,” as if Congress’s only responsibility to the military is to fund it. But the Constitution provides that Congress alone not only has the power to declare war, also Congress is to “make Rules for the Government and Regulation of the land and naval Forces.” Further, Congress alone has the explicit authority to “punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” the latter being as close to a global war on terror as the Founders might have imagined, IMO.

Very basically, my reading of the Constitution and various testaments of its authors suggest to me that the intention was to give Congress the authority to make political decisions about committing troops, and the president the authority to decide how to use the nation’s military resources to carry out the will of Congress. Although the President has some power to use military force without waiting for Congress’s permission, it’s going way too far to claim that Congress has nothing whatsoever to say about how the President uses the military and can check him only by denying funds. I believe Congress does have the authority, under the Constitution, to order the President to clean up his mess and bring the war in Iraq to a close.

This is an important point, because denying all funds for the Iraq War could have some consequences the advocates of that tactic haven’t thought out. I believe strongly that if the tactic would put our troops overseas at any increased risk whatsoever, it’s the wrong move. Further, that kind of brute force grandstanding could put the nation’s government into serious disarray and invite a mighty backlash against the tactic’s perpetrators. It’s a highly dangerous move, in other words, and I don’t blame Democrats for being reluctant to make that move.

But here’s the good news, courtesy of Think Progress:

According to a tally by Think Progress, only seven lawmakers have given their public support to Bush’s escalation plan, twenty-three have come out in opposition, and fifteen have said they will withhold judgement for now.

Think Progress will be keeping tabs on who is willing to go along with Bush’s misguided plan and who is speaking out against it here. Help us keep it updated by leaving more examples in the comments. (Or send us an email).

A veto-proof, bipartisan majority in Congress willing to say no to Bush would be the best of all possible developments. Not only would it pave the way for Congress to exert more authority; bipartisanship means neither party would take the blame for whatever mess Iraq is left in when we leave. I believe this is to the Republicans’ advantage as well as Democrats’, which is why I’ve had some hope for awhile that congressional Republicans eventually will choose to throw Bush overboard to save themselves. And that eventuality is, IMO, getting closer every day.

From The Economist:

Bush’s double-or-quits policy is rife with risks, not just in the Middle East — where the hanging of Saddam Hussein reminded the world just how far Iraq has sunk — but also back home.

They are risks that threaten to reduce Bush to Nixonian levels of isolation, and that threaten long-term damage to the Republican Party. Bush told journalist Bob Woodward that he would not withdraw from Iraq even if his wife and dog were the only people left on his side. The jest may not prove idle.

This might sound like hyperbole. Bush is currently receiving powerful support for surge from two of the country’s most prominent politicians: John McCain, who is the front-runner to win the Republican nomination in 2008, and Joe Lieberman, a former Democratic vice presidential candidate who defeated an anti-war Democrat in last year’s congressional elections. The two men are back from a 10-day visit to Iraq, and are even more voluble than usual.

At the same time, the Democratic leadership continues to be nervous about confronting Bush directly on the subject. Harry Reid, the new Senate majority leader, proclaimed his support for surge under certain conditions, before changing his mind a couple of days later. Hillary Clinton pulled the opposite trick — first coming out against surge, then laying down conditions that would make her change her mind.

But the hyperbole is fast becoming reality. McCain and Lieberman are part of a diminishing band of diehards on the Iraq War (Lieberman is a band of one on the Democratic side). And the Democratic leadership is likely to be forced to drop its equivocations over the next few weeks.

The most worrying problem for Bush, though, is the growing hostility to surge in his own party. Chuck Hagel’s description of the policy as Alice in Wonderland is par for the course: the senator for Nebraska has long criticized the war. But now two other senators who face uphill races for re-election in 2008 have added their voices to the criticism: Oregon’s Gordon Smith and Minnesota’s Norm Coleman.

Robert Novak, a long-time Republican-watcher, says Bush will find it hard to get the support of more than a dozen of the 49 Republican senators for sending more troops.

You can do your part to shove matters along by leaning on your Senators and Congress critters and signing Moveon’s petition against escalation.

Remember, Iraq isn’t the only serious issue we face now. The Democrats will be holding investigations and hearings on other critical matters, like torture and surveillance without warrants. These should not be seen as minor, secondary details to Iraq. And some semblance of bipartisanship would strengthen the Dems’ hands.

Sorta kinda related: Jeremy Brecher and Brendan Smith write at AlterNet that the Democratic Congress and the Republican White House seem to be engaged in a Constitutional collision course, and not just on Iraq.