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Co-Equal Branches of Government

6 February 2007

Much is being said in the halls of Congress these days about the “fact” that Congress is a co-equal branch of government. As such, the argument goes, Congress has the authority to reign in the President’s plans with respect to the Iraq war. There have even been plans floated to limit the number of troops the President can place in Iraq, for example. The purpose of this post is to examine the rationale for this co-equal claim and to see if the Constitution supports it.

My first question is, what does co-equal mean? The Constitution grants specific duties and authority to each branch of government. While there is some overlap, generally each branch has different responsibilities and powers than the other branches. Congress, for example, has the power to create and pass legislation. The President and the judiciary do not. The President, on the other hand, is the Commander in Chief of the armed forces while the Congress and the judiciary are not. In what sense then can the three branches of government be said to be co-equal?

I submit that the very term “co-equal” is meaningless and that those using it do so not out of any realistic claims to authority but to put forth a propaganda campaign to a populace largely uneducated with regard to constitutional powers and the structure of government. They simply make a claim and expect Americans to accept it. The fact is, no branch is equal to another branch. All branches of government are equally important but they are not equal any more than an apple equals an orange.

Congress does indeed have one large power that could be used to effectively end the war in Iraq. That power is the ability to cut off funding. Our founding fathers gave them that power and it is completely legitimate. Using it, however, is a politically risky proposition. While Congress can cut of funding for the war, that does not obligate the President to bring the troops home. The President could, for example, continue the campaign in Iraq without funding and place the responsibility for the outcome on the Congress. At this juncture it is doubtful that Congress will take such a drastic step.

What other constitutional power does Congress have with regard to the war? None. Congress can pass non-binding resolutions every day for the duration of the session and their actions will not require anything of the President. He can go on his way doing what he is doing. True, they can make him pay a political price but they have no authority to force him to do anything militarily.

Claims that Congress has the authority to limit troops in this or that theater are false. True, Congress can pass any legislation it wants, including legislation mandating that the President limit troop strengths. The President, however, would be under no obligation to pay any attention to such legislation because the Congress does not have the Constitutional authority for passing it.

The caveat here is the judiciary. Regardless of Constitutional authority, the Supreme Court has shown a penchant for upholding legislation that is in flagrant opposition to the Constitution. McCain-Feingold Campaign Finance Reform is but one example. So in any action the Congress may take, the Supreme Court becomes a wild card.

In the event that Congress passes legislation restricting troop strengths, the President would have several options. He could ignore such legislation and do what he thinks best with the troops in which case Congress would almost certainly sue the President in the Supreme Court. Alternatively, the President could sue Congress immediately. Either course leads to the Supreme Court. Should the Supreme Court rule against the President in such a situation, I submit that the President would have the Constitutional authority to ignore such a ruling. Indeed, the judiciary depends entirely on the executive for enforcement of its decisions. If the courts make a decision that clearly violates the Constitution I submit that the President not only has the ability to go against it, he has the duty to do so.

Lest anyone think I am engaging in partisan hyperbole let me say that my view on this does not depend on who happens to be the current occupant of the White House. While I would likely disagree with much of what a Democrat President stood for, his Constitutional authority does not depend on his positions on issues or his party affiliation. By definition, constitutional authority derives from the Constitution. Therefore, any President is duty bound to take his oath of office seriously and defend the Constitution against all enemies domestic and foreign. That includes the courts when they blatantly disregard the Constitution in favor of their own ideology.

The bottom line is this. The President is the Commander in Chief of the Armed Forces. As such it falls to him how and when to use them. Congress can bluster all it wants but they cannot change that balance of power.