But let's pretend this is a serious argument, not merely excusemaking. The plain language of the statute says that the power is only for "for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies." It does not provide any power for combat expenditures. Moreover, it is clearly designed as an emergency measure, in place of Congress having the time to act and is designed to be covered by future appropriations of Congress. It is, in sum, a stopgap measure.

It does of course, make clear that the troops can not be "abandoned" in the field - the President can always provide for their food, clothing, health, etc by invocation of the Food and Forage Act. But he will not have to. Congress will always provide for that and has. But the idea is the President can fund combat operations by recourse to the Food and Forage Act and that is plainly and unequivocally false.

But don't take my word for it. Read this:

On January 17, 2007, Robert Sunshine, the assistant director of CBO, testified before Congress that "The authority of the Feed and Forage Act is limited to obligations for items meant to sustain troops in the field, such as subsistence, clothing, fuel, quarters, transportation, and medical supplies. It cannot be used to purchase additional weapons or to support military hardware." His testimony states that items meant to sustain soldiers during an ongoing military engagement could be purchased with this authority. These items include but are not limited to those outlined in the original law (ie clothing, fuel, etc.). Sunshine states this authority does not extend to items such as additional weapons or military hardware because they are not related to maintaining soldiers in combat zones.

. . . The Feed and Forage Act is referenced in an 1868 Supreme Court case that found that the Secretary of War had lacked the authority to agree to financial arrangements that promised future payment. Despite this verdict, Louis Fisher of the Congressional Research Service cites a description of the purpose of the act within the dissenting opinion in this case: "It will thus be seen that the contracts for the subsistence and clothing of the army and navy, by the secretaries, are not tied up by necessity of an appropriations or law authorizing it. The reason of this is obvious. The army and navy must be fed, and clothed, and cared for at all times and places, especially when in distant service."

Taken together, these two interpretations of the law (as well as a literal reading of the original language) would point to the military having authority to provide for the humanitarian needs of soldiers during an ongoing conflict when appropriations are lacking, but not the authority to procure goods and services directly related to continuing soldiers war-fighting capabilities.

Now that that is clear, let's consider another argument that is often bandied about - that the President can shift appropriated monies to pay for the Iraq War. This is also balderdash and demonstrates a complete ignorance of the Constitution and Congressional appropriations. It is often said that Bush did just that when he shifted when General Tommy Franks shifted resources from the Afghanistan theater to preparation for the Iraq invasion. I have never seen an argument that sustains the claim, one citing the appropriation violated, etc. But let us assume it is true for the sake of argument. Subsequently, the Congress adopted the policies of the President on the matter and chose not to object to any alleged misuse of the appropriation. Indeed. it is not like Bush coulod not have gotten whatever he wanted from the Rubberstamp Republican Congress. The example is extremely unconvincing.

Let's do a review of some basic Constitutional law and the separation of powers shall we?

[T]he relevant enumerated Article 1 powers:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or officer thereof.

After listing these powers, the law professors summarily conclude that

The provisions plainly set forth an extensive role for Congress that goes far beyond the initial decision of declaring war and subsequent decisions regarding its funding. This mass of war powers confers on Congress an ongoing regulatory authority with respect to the war.

. . .

The law professors then miscite the Steel Seizure Cases to support their argument that "the President is bound by statutory restrictions in wartime." Of course the President is bound by constitutional statutory restrictions. But the law professors wrongly imply that the Steel Seizure Cases support their argument that the Congress can impose statutory restrictions on the SPECIFIC conduct of military operations, as opposed to general rules governing the military. The Steel Seizure Cases simply do not stand for that proposition. Nor do Rasul, Hamdi and Hamdan, also cited by the law professors. Instead, Justice Jackson's concurrence, which the law professors fully endorse, expressly limited its holding to DOMESTIC restrictions:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward not because of rebellion, but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.

Justice Jackson's differentiation between domestic and external restrictions on the Commander in Chief power is consistent with the arguments we raised regarding President Bush's violation of FISA, and it is completely in line with the understanding of the Federalist Papers.

For example, in Federalist 74, Hamilton wrote:

THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' . . . Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.

In Federalist 69, Hamilton described the division of the war power thusly:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

And the Federalist Papers also speak to the REAL questions, the ones the law professors avoided in their mad rush to defend the idea of Congressional micromanagement of the Iraq war, to wit, can Congress end the war, and if so, how? The Federalist papers provide the answer. In Federalist 24, Hamilton wrote:

that standing armies [need not] be kept up in time of peace; [n]or [is] it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature. . . . [T]he whole power of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; . . . there [is], in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.

Here Hamilton states clearly that the power to end wars resides in the Congress most clearly through the power of the purse and the EXPRESS requirement that no appropriations for a standing Army last for more than two years. In this way, any war would require a de facto reauthorization from the Congress every two years by its decision to fund the war.

In Federalist 26, Hamilton wrote:

Let us examine whether there be any comparison, in point of efficacy, between the provision alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. . . . The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. . . . The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. . . .

What is clear is that all this legal tapdancing gets us nowhere. To end the war, the Congress can do one of two things, or preferably both: it can repeal the Iraq AUMF, and/or it can refuse to fund the war. This sophistry from Democrats, politicians and legal scholars, does neither us nor our principles credit.