JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that instead of censuring the president, Congress should restrain the foreign excesses of the Bush presidency and restore respect for international law by cutting off funds for any US military adventure in Iran…

However great my admiration for Sen. Russ Feingold (D-WI) or my distress with the Bush Administration, the censure strategy for restoring accountability to the Presidency is a bad idea. The Constitution does not specify grounds for censure. Neither does it describe an appropriate process. As a result, the censure of any contemporary President is likely to appear no more than a political hand grenade, which the losing party will simply lie in wait to hurl back when a President of a different party takes office. If an incumbent President commits high crimes and misdemeanors, the Constitution provides Congress a reasonably well understood process for removing him from office. The fact that congressional Republicans severely abused that process in attacking the Clinton presidency does not justify Democrat-led efforts to fashion yet another way of delegitimating the President that would likely tempt abuse even more frequently.

If congressional Democrats want to demonstrate backbone and to instill presidential accountability in a way that actually matters, they should introduce the following two-sentence joint resolution:

Unless and until Congress provides specific and explicit authorization for the operational deployment of military force against Iran, no funds heretofore or hereafter appropriated shall be used for that purpose, except to repel or respond to an Iranian attack on the United States or its armed forces, or under circumstances where the President determines such an attack is imminent. In the latter case, the President, prior to or coincident with the deployment of military force, shall provide notification of the imminent attack to the Speaker of the House and to the president pro tempore of the Senate.

There is no doubt that such a statute would be constitutional. The most aggressive theoretical defense ever mustered for executive branch unilateralism in military affairs is Professor John Yoo’s The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (University of Chicago Press 2005). Although his bottom line on executive power is, in my judgment, implausible, Professor Yoo actually offers a compelling defense of Congress’s authority to refuse to fund military operations. Where we differ is that Professor Yoo thinks the power of the purse is Congress’s only permissible check on the executive; I think it one of several. But, either way, Congress is allowed to turn off the money spigot.

Professor Yoo bases his case for congressional funding power on a variety of evidence — Montesquieu’s separation of powers writings, British parliamentary practice, and constitutional practice by both the American colonies and the post-independence states. Yoo’s view of the Framers’ intentions in drafting Articles I and II is as follows:

The executive [under the new Constitution] . . . could not wage war without the support of Congress, which could employ its appropriations power to express its disagreement and, if necessary, to terminate or curtail unwise, unsuccessful, or unpopular wars.

If the most resolutely neo-Hamiltonian defender (or, I would argue, inventor) of executive prerogative acknowledges the power in Congress to refuse funding for military initiative, there can truly be no doubt of its legitimacy.

Such a congressional resolution would mark a dramatic step toward assuring the American people and the larger world that, henceforth, Congress is determined to return the United States to a fact-based foreign policy, consistent with international law. It is time to stop threats of war based on overblown rhetoric, wishful thinking, and apocalyptic fantasy. Congress, if you want to discipline the Bush presidency, start here.

Peter Shane is the Joseph S. Platt/Porter Wright Morris & Arthur Professor of Law and Director, Center for Interdisciplinary Law and Policy Studies at Moritz College of Law, Ohio State University

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