Senate Needs to Give Webb Amendment a Rest

As I watch Congress seek to confer federal rights to enemy combatants (read: terrorists) and micromanage the president’s ability to wage the war on terrorism, I was struck by the fact that many lawmakers have apparently forgotten to read a simple document that governs the laws they seek to enact. That simple document is known as the Constitution of the United States — a document Sen. Jim Webb (D-Va.) has apparently failed to consult as he crafted an amendment due on the Senate floor any day now.

In short, Webb proposes that troops deployed in Iraq should be given an equal number of days off as they have been sent into harms way. On the surface, this sounds like a great idea, but that pesky Constitution gets into the way. For one, the Constitution provides that the commander in chief of the Armed Forces is the president of the United States. Don’t believe me, please consult Article II, Section 2. Or, Congress has no business micromanaging the activities of war when the Constitution specifically delineates such responsibility to the president and that this is the first and strongest power delineated to the president in the Constitution.

For his part, Webb asserts that Article I, Section 8 of the Constitution empowers Congress to “make rules for the government and regulation of the land and Naval forces.” I stand corrected — it looks as if the senator has, in fact, consulted the document. True enough, senator. However, Justice Joseph Story, appointed to the Supreme Court by President James Madison in 1811, wrote a fascinating document called Commentaries on the Constitution that I wish Webb had consulted before throwing Article I, Section 8 out there as if that had firmly settled the legality of his amendment.

Reviewing Justice Story’s work, the Heritage Foundation’s guide to the Constitution clearly states that “the central purpose of the clause is the establishment of a system of military law and justice outside of the ordinary jurisdiction of the civil courts.” Or, Congress has properly acted to utilize their authority under this clause of the Constitution when they created the Uniform Code of Military Justice, for example.

The framers of the Constitution did not intend, despite all of the static on the Hill to the contrary, to allow members to exercise powers that were not clearly delineated to them in the document. Or, as Armed Services Committee Ranking Member John McCain said in regards to Webb’s amendment: “Where in the Constitution of the United States does it say that the Congress decides how long people will spend on tours of duty and how long they will spend back in the United States?”

So the Webb debate is now on, and cooler heads are not likely to prevail. Democrats in the Senate, long looking for an opportunity to micromanage the president and exercise powers not granted to them in the Constitution to “bring the troops home” have now settled on working to adopt an amendment that would not stand in a court of law but will prevail in the court of public opinion with the justices of Moveon.org presiding.

The next time an arm-chair commander in chief decides to micromanage the president of the United States from the safety of the chambers of the United States, I only wish that such a legislator would consult the Constitution he or she has taken an oath to protect and defend.