JURIST Guest Columnists Lawrence Friedman and Victor Hansen of New England School of Law say that whatever policy intentions the US executive branch may have with regard to a nuclear Iran, its foreign affairs and national security discretion is and must be constitutionally limited by Congress's power of the purse…

Vice-President Dick Cheney’s belief in a strong executive with near-exclusive power over foreign affairs and national security has been well-documented. The Vice-President has stated time and again his view that prior occupants of the Oval Office allowed too much interference with executive decision-making in these areas. Recently, Seymour Hersh, writing in the New Yorker, reported that, even if the new Congress voted to prohibit the United States from planning to overthrow or destabilize the current regime in Iran, the Vice-President “would find a way to work around [such a law].” See Seymour M. Hersh, "Is a Damaged Administration Less Likely to Attack Iran, or More?," The New Yorker, Nov. 27, 2006.

If this sounds familiar, it should: representatives of the Reagan administration put forward precisely these arguments for executive power in connection with the passage of the Boland Amendment in 1984. The amendment essentially forbade the United States government from providing military support to the Contra rebels in Nicaragua with funding appropriated to the Central Intelligence Agency, the Department of Defense, “or any other agency or entity of the United States involved in intelligence activities.” In the event, the administration skirted the prohibition by relying upon funding derived from, among other sources, the sale of weapons to the government of Iran. A scandal erupted when the administration’s actions became known to the public.

In all the attention given the issue of executive power in the wake of the Iran-Contra scandal, the question of whether, consistent with the United States Constitution, Congress could limit the President’s decision-making in respect to foreign policy went without a definitive response. This question is still relevant today, as the new Congress may well consider limiting the President’s discretion in respect to Iran, just as Vice-President Cheney is reported to have predicted.

We are not without guidance in addressing the constitutionality of such a Congressional limitation. In 1989, in a short and prophetic article that appeared in the American Journal of International Law, Louis Fisher maintained that Congress has the authority to limit Presidential actions in foreign affairs and national security. See Louis Fisher, "How Tightly Can Congress Draw the Purse Strings?," 83 American Journal of International Law 758 (1989).

Fisher argued that the beginning and end of the discussion lies in the appropriations power: Congress has the sole power of the purse. Article I, section 9, provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.” The President enjoys no similar authority. Further, while the President is the Commander-in-Chief, the text and practice make clear that his power in respect to foreign affairs and national security is not unilateral: in addition to the power to declare war, the Constitution permits Congress to “provide for the common defense,” U.S. Const., Art. I, § 8, cl. 1; to raise and support armies, see id. § 8, cl. 12; and to “make rules for the government and regulation of the land and naval forces,” see id. § 8, cl. 14. Though it would be possible for the President to conduct federal operations with funds gathered from non-Congressional sources, such action still must be approved by Congress: as Fisher concluded, the Constitutional design simply does not suggest that either the executive or legislative branch of the federal government could involve the nation in military operations and fund those operations without any reliance upon the other. See Fisher, supra, at 762.

Fisher was right then and his argument has lost none of its force today, notwithstanding the events of September 11. The Constitution does not allow decisions regarding military operations to be made outside the system of checks and balances upon which our constitutional democracy depends. That system ensures that decision-makers remain accountable, and it prevents the accretion of too much power in any one branch of the federal government.

It is true — as Justice Jackson famously remarked — that the Constitution should not be viewed as a suicide pact. But neither should it be seen as a mere technicality: members of the Bush administration may well believe that military operations in Iran are necessary to protect the citizenry, but the government the framers designed does not permit them to act on that belief when the people’s Congressional representatives, in their collective wisdom, conclude that it is ill-considered. And, if the President were to ignore Congressional will as expressed in a condition on military or national security appropriations, then, as Fisher argued almost two decades ago, he would be inviting impeachment proceedings. See id. at 765.

In the face of Congressional opposition, the President is not without options: he can always attempt to make a stronger case for military action in Iran and demonstrate why any limitations on his discretion to pursue military options there ought to be lifted. That may be a difficult task: leaked information from the most recent National Intelligence Estimate on Iran suggests that the country is some ten years away from developing a nuclear weapon. Soon after this information became public, the administration began to disavow the accuracy of the report and suggested that a nuclear Iran is a more immediate threat.

In light of the case the administration made for the war in Iraq, members of Congress could be forgiven for viewing the President’s argument with some skepticism. Indeed, the new Congress must be much more willing then its recent predecessors to challenge and question the assertions put forth by the administration regarding a nuclear Iran. While there is little doubt that a nuclear Iran would threaten U.S. and western interests in the region, Congress cannot let that possibility weaken its resolve to ask probing questions of administration officials, carefully review all available intelligence, and exercise its own independent judgment with regard to the threat posed by Iran and the best way to deal with that threat. Such inquiries and determinations represent a critical structural check on presidential power, and the ability of Congress to act on them is a constitutional prerogative.

Lawrence Friedman teaches courses in constitutional law at New England School of Law; Victor Hansen, a former lieutenant colonel in the United States Army JAG Corps, teaches courses in criminal law there.
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