Fred Barbash has an interesting article, Why would Congress surrender , where he argues silence also passes for action. He writes that Congress has been so timid in asserting its power as a branch that it is breaking the underlying assumption of the doctrine of separation of powers.

Barbash comments that because the judicial so rarely gets involved in separation of powers arguments between the Legislative and Executive, that the two bodies basically have to negotiate it the issues out. So rather than being constitutionally explicit in solution, they tend to be political negotiations.

When one branch drops out by failing to respond, the other branch effectively sets the precedent, which is passed along to the next generation and the generation after that.

Inaction, indeed, strengthens that precedent. Over time, inaction is taken as acquiescence, a form of approval, and the precedent becomes entrenched until it's as good as law.

This is precisely what has occurred over the years. Successive decades of congressional acquiescence in the face of executive claims of war power have allowed the law to be settled exclusively by the executive branch.

Because Congress has been fearful of asserting themselves politically against the Executive it has broken a fundamental relationship and basis for separation of powers and the equilibrium it is supposed to enable between the three separate but equal branches of government:

The equilibrium of government, in the view of the Constitution's Framers, rested on a stated assumption that each branch would fight fiercely to expand its authority but just as fiercely resist encroachment from another branch.

That Congress would refuse to fight seemed unimaginable.

Interesting. The Australian Senate, which is the closest thing the Australian national government has to a separate legislative, has not been explicit in resisting executive dominance. Courtesy of Senators being in the Executive Cabinet, separation of powers is largely broken anyway. Executive discipline as government extends into the two legislative houses.

There is an unusual congruence of executive, congress and public opinion which is forcing a review of which branch of government can determine foreign policy. The Bush Administration believes in a time of war and national emergency in a unitary executive which has absolute power. Congress has usually deferred to the executive on foreign policy and left itself to its constitutional responsibility of the public purse, while public opinion is heavily against the executive at the moment and elected an opposition congress to curb the executive's foreign policy.

While much of current constitutional practice is based on what the branches of government in the US have fought over in the past, the US Constitution still serves as guide to who has power over what. For instance Congress has explicit authority:

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;

The declaration of war has gone out of fashion since World War II. Congress doesn't do formal wars anymore. The militia is an interesting one as the current National Guard is the modern form of the older militia, though bills since have moved the Guard into increasing federal control. One that isn't disputed is that Congress controls the budgeting and money for the military and militia.

The executive has:

The President shall 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;

Though the executive does have explicit authority to make treaties, which have to be ratified by the Senate. So foreign policy is largely by convention in the hands of the executive, and since the executive has departments such as the State Department, which was created by legislation, it is a given that the executive controls foreign policy.

There have been a couple of op-eds recently arguing that Congress should use its power of the purse to reign in the Executive's foreign policy. Democratic hopeful Tom Vilsack wrote in an op-ed :

Members of Congress have a constitutional and moral obligation to exercise their authority to stop funding President Bush's failed policy in Iraq.

And William Odem :

Embracing the four myths gives Congress excuses not to exercise its power of the purse to end the war and open the way for a strategy that might actually bear fruit.

In both instances it is assumed that changing the funding of the conflict from the Executive's budget, to a Congressional budget, will force a change in strategy that presumably has to fit in with the level of funding.

But that doesn't take into the matter of politics. Currently the Bush Administration, and by implication, as well as concretely from the former Congressional majority, so does the Republican party. With 2008 elections coming up for the President and Congress it is possible that Iraq will be a dominating feature of voting patterns - as it was in 2006. So the Democratic majority in the House may choose to move timidly to avoid owning Iraq.

Can Congress restrict the level of deployment in Iraq through money bills? Yes. Will it? Probably not and if it does, only as much as they can while still leaving the President with ownership of the war.

I am opposed to impeaching the President of the United States until concrete solid evidence turns up. The only place I can currently see that happening is around the FISA wiretappings. Impeachment is not a process to recall an inept, incompetent or unpopular President. It is a specific legal process that requires proof of "treason, bribery, or other high crimes and misdemeanors".

I was opposed to the recall election in California for the same reasons. Democracy has a morality and that requires that an elected representative or executive has the right to complete their term unless they have committed criminal acts.

It is not enough that they are unpopular to a majority, or a minority. In the case of the recall election in California it was a minority that objected and collected enough signature to recall Grey Davis.

Republicanism requires that the minority accept the majority's will, however they do so secure in their rights as individuals. This does not mean a minority get to gazump an election or an elected position through the collection of 50,000 signatures.

The call for using impeachment as an electoral recall device to take back a 2004 decision is a similar situation. It is more complex with the Bush Administration as the current President has approval ratings that are 1% above Richard Nixon before he resigned.

But this does not detract from the morality inherent in democracy that demands the President complete his term unless discovered to have performed criminal actions. The time to remove the Bush Administration was in 2004 when there was a general election.

While I consider the Bush Administration repugnant, incompetent, inept, dishonest and incapable of good governance; I do not want them impeached unless there is good evidence they committed crimes and misdemeanors. I don't doubt that there has been criminal activity going on, but it can't be a gut feel, it must be proven.

Some of the claims to start impeachment proceedings include that the Administration lied to take American to war. This does not fly as two Senators from the Intelligence Committee voted against the war powers. All it would have taken is for them, despite being gagged on what they had seen, to say, "This is bogus. The intelligence being presented is a lie."

There were many warnings that the Administration was leading with falsehoods. The Knight-Ridder newspapers were exposing it. There were leaks and op-eds on the dishonest nature of the intelligence. There was also the representatives in Congress themselves, who rather than face down a popular President with ratings in the 90% mark, chose to vote for the war. The failure was Congress' as much as the Administration's.

France is one of the few countries that maintains independent intelligence assets that can rival the United States. Most other countries such as Australia, Britain and Germany are dependent on US intelligence.

France was opposed to the war and publicly said that the intelligence the US was presenting was wrong. It was assumed in the US that France was conducting Gaullist foreign policy and trying to counter US hegemony. They were then slurred with the 'freedom fries' and the pouring of French wine down gutters.

France was right. The information, or truth, was out there.

The outing of a CIA agent is another issue. Because of Scooter Libby taking the brunt of that, unless double jepaordy is changed, we will not know if Plame was outed by Cheney. There is also the grey area that the Vice President can declassify intelligence. I doubt it.

There is probably statues or executive orders that force some kind of process to it, but given the US Republican Party Congress of the time and the manner in which President Bush uses executive orders, I am sure that would be quickly changed.

Another issue is torture. This is a good example where the Bush Administration have used the grey areas of convention and precedent to keep the whole process outside of judicial scrutiny. They also used a compliant Congress to pass a bill that allowed the executive to use torturous methods in the McCain bill.

The argument is that this contradicts the UN treaty on it and as such is breaking international law. In the US legal system treaties and statues have equal authority and more recent legislation can over-ride a treaty. Consequently the McCain bill became the authority on torture.

Again this is failure of Congress to act as a check and balance on the Executive. This is a classic symptom of state of exception governance where the legislative gives the executive new opportunities to act arbitrarily and outside of the juridical order.

A common claim is the dereliction of duty when the 911 attacks happened. The image of Bush stupefied in a school classroom with a child's book in his hand for five minutes before he decided to do anything is instructive. But incompetence is not a valid reason for impeachment. It must be criminal.

I am fully in favour of an energetic legislative shaking the executive tree constantly. I also think it is important that the current Congress continue to subpeona and introduce contempt charges when the executive does not comply. It is important that a weak and unpopular executive face a strong legislative with public will behind it to create new precedents should a future George try to push the boundaries of executive authority.

I am fully comfortable with the legislative investigating FISA and any other action by the executive where there is the slightest sniff of criminal behaviour. Once there is proof, then impeachment should begin.

Until then I will be happy with an energetic legislative doing what they should have done four years ago and act as a check and balance on the executive.