Here's a Stupid Question!

Rosenthal, Lawrence rosentha at
Wed Apr 4 09:05:46 PDT 2007

My recollection of somewhat more recent events is that the Iraq war was authorized by Congress, and every penny spent in that war has been appropriated by Congress.  The President has also repeatedly acknowledged that he may not spend further money on the war absent an appropriation from Congress.  I therefore fail to understand how a war fought under such circumstances can be properly characterized as "a limited-time presidential dictatorship."  Perhaps I do not understand what the word "dictatorship" means.
Larry Rosenthal
Chapman University School of Law


From: conlawprof-bounces at on behalf of Douglas Laycock
Sent: Wed 4/4/2007 8:29 AM
To: conlawprof at
Subject: Re: Here's a Stupid Question!

This is my recollection too, although I last studied this stuff as an undergraduate 40 years ago.  My fading memory is that in the Glorious Revolution of 1688 that put William of Orange on the English throne, he had to promise (or the new Bill of Rights provided) that he would not engage in any foreign wars without parliamentary approval.  I had always thought that this was the basis for giving Congress the power to declare war.

Quoting Robert Sheridan <bobsheridan at>:

> If I recall British parliamentary history sufficiently, always a big  
> risk, the monarch would enter the nation upon a war and expect  
> Parliament to come up with the pounds sterling, which it did not  
> always relish doing.  Parliament's origin as an independent body is  
> found in its power of the purse.  I see the current Congress v.  
> President Bush controversy as rooted in that British-Parliamentary- 
> U.S. Constitutional  history.  But we don't like to look that far  
> back, as though it had nothing to do with us.
> Don't the citizens of the U.S. have a say in the entering of a war,  
> its conduct, and the circumstances of its ending?  And if we do,  
> don't we express that through our Congress?  The president seems to  
> think that we express it primarily through Him, and that for Congress 
>  to take a contrary stance, as it has been doing, is disloyal to the  
> country, the troops, and to Him. Yet this is why they invented  
> parliamentary bodies, such as Congress.  To thwart the will of the  
> king, or the wannabe king, especially if he goes off on a wild tear  
> and refuses to heed the call of a majority of the voting electorate  
> to please come back before too much (more) damage is done.  Cromwell; 
>  am I getting warm?
> Maybe I've got it wrong.
> rs
> sfls
> On Apr 1, 2007, at 1:32 PM, Sanford Levinson wrote:
>> I cannot refrain from asking whether this is just another  
>> illustration of the costs, in the 21st century world, of the  
>> presidential policy-based veto.  Even if, arguendo, the President  
>> cannot be forced by Congress to micromanage a war, a proposition  
>> being examined in a seminal article by Marty Lederman and David  
>> Barron, there is no plausible argument that setting a date for  
>> withdrawal is "micromanagement."  If one agrees that Congress has  
>> the constitutional authority to compel withdrawal from a war (and  
>> is there any plausible argument that it does not?), and if such a  
>> law would be constitutional if passed over a presidential veto, is  
>> here any good argument for giving a president the authority to  
>> negate the wishes of a majority of Congress that by stipulation  
>> represents a majority of the public?  Does the Constitution really  
>> establish a limited-time presidential dictatorship about the most  
>> central issues of war and peace (and life and death)?
>> sandy
>> >>
>> At 10:02 AM 4/1/2007 -0700, Rosenthal, Lawrence wrote:
>>> There is another answer to this question, but it is not legal.  By  
>>> issuing a veto, the President forces Congress to back down and  
>>> pass a "clean" funding bill.  When Congress must swallow its  
>>> reservations and pass such a bill, in some (swing voter?) eyes,  
>>> the Democrats will look craven and cowardly -- battered into  
>>> submission by a resolute President.  It has always been unclear to  
>>> me what is gained by a Democratic strategy that requires the  
>>> Democrats to eventually retreat from their opposition to funding  
>>> the war.  I note that the other day, Senator Durbin said that the  
>>> President will have to "compromise"; perhaps the Democrats thought  
>>> they would force negotiations.  The President, however, shows no  
>>> inclination to negotiate; and thus the Democrats seem to have left  
>>> themselves with no "exit strategy" from their own position on  
>>> funding the war.  The recent votes in the House and the Senate may  
>>> please the Democratic base in the short run, but it seems to me  
>>> that given the President's willingness to force passage of a clean  
>>> bill, in the long run the Democratic strategy pleases no one,  
>>> including the base.  Yet another example of the Republicans  
>>> outmaneuvering the Democrats politically, in my view, but what I  
>>> regard as a successful Republican political strategy would be  
>>> undermined if the President signed even a nonbinding bill calling  
>>> for phased withdrawal accompanied by a signing statement.
>>> Larry Rosenthal
>>> Chapman University School of Law
>>> ________________________________
>>> From: conlawprof-bounces at on behalf of Marty Lederman
>>> Sent: Sun 4/1/2007 9:35 AM
>>> To: RJLipkin at; CONLAWPROF at
>>> Subject: Re: Here's a Stupid Question!
>>> Let's say the conferees agree on, and both houses vote for, the  
>>> House bill, which requires redeployment out of Iraq by August 28,  
>>> 2008.  (I've posted the language of provisions here:  http:// 
>>> At that point, Bush could issue a signing statement to the effect  
>>> that section 1904(d) -- requiring redeployment by August 2008 --  
>>> is unconstitutional, and signal that he won't comply with it.  He  
>>> would be wrong about the constitutionality -- but if he were  
>>> correct, the nonenforcement would be "permissible."  Of course, at  
>>> the point in August 2008 when Bush fails to comply, Congress and  
>>> the courts could step in to try to force compliance.
>>> What I don't think would be permissible would be for Bush to do  
>>> what he does all the time -- i.e., invoke the avoidance canon to  
>>> "construe" section 1904(d) not to mean what it so plainly says.   
>>> In my view, he'd have to say flat-out that it's unconstitutional  
>>> and that he won't abide by it.
>>>         ----- Original Message -----
>>>         From: RJLipkin at
>>>         To: CONLAWPROF at
>>>         Sent: Sunday, April 01, 2007 11:09 AM
>>>         Subject: Here's a Stupid Question!
>>>                 I know this is a stupid question, but I'll ask it  
>>> anyway. Why can't President Bush sign the congressional bill on  
>>> funding for Iraq and issue a signing statement saying, in effect,  
>>> that he will interpret it consistent with his executive powers?   
>>> See I told you it was stupid. I think I can answer it, but would  
>>> much prefer those who know more about signing statements than I  
>>> do--that is, every other list member--to show me the way.  Thanks.
>>>         Robert Justin Lipkin
>>>         Professor of Law
>>>         Widener University School of Law
>>>         Delaware
>>>         302-477-2193

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