The authority of the President to use military force without congressional authorization and the ability of Congress to limit or regulate such use are discussed in a new report (pdf) from the Congressional Research Service.
At issue are the scope and priority of basic constitutional terms, including the definition of the President’s role as commander in chief, the authority of Congress to declare war, and its ability to appropriate or to withhold funds for military operations.
No final answers can be provided. However, “it is generally agreed that Congress cannot ‘direct campaigns,’ but that Congress can regulate the conduct of hostilities, at least to some degree, and that Congress can limit military operations without the risk of a presidential veto by refusing to appropriate funds,” the CRS report said.
“To date,… no court has invalidated a statute passed by Congress on the basis that it impinges the constitutional authority of the Commander in Chief, whether directly or indirectly through appropriations,” the report noted. “In contrast, presidential assertions of authority based on the Commander-in-Chief Clause, in excess of or contrary to congressional authority, have been struck down by the courts.”
The political, ideological or institutional obstacles to the independent exercise of constitutional authority by Congress, which may run even deeper than any legal constraints, are not addressed here.
A copy of the new report was obtained by Secrecy News. See “Congressional Authority to Limit Military Operations,” September 8, 2011.