Paul Pillar

Strike up the Band for Separation of Powers

Among the many sundry provisions in the defense authorization bill that the House of Representatives passed last week is one to cut by almost half the amount spent on military bands. This leads to the question: who has it in for military bands? What is the political foundation for the anti-band lobby?

I don't know the answer to that, although this provision might be in part a reaction to a comment by David Kilcullen that got some notice when Kilcullen was working as an adviser to David Petraeus in Iraq—that there are more musicians in the Defense Department than there are diplomats in the State Department. Whatever the impetus, this is just one example from a larger, all too familiar, pattern of highly selective Congressional micromanagement that sometimes gets far down into the weeds of the executive branch's business. That micromanagement is in turn one part of Congressional inconsistency in choosing which topics on which to instruct or not to instruct the executive. On some very weedy minutiae Congress instructs; on some broad issues of high policy that are more appropriately the business of the legislative branch, Congress defers. Some of the latter issues have raised problems of constitutionality, as improper grants of legislative power to the executive.

As a matter of constitutional principle and not just of law, the proper division of responsibility between the legislative and executive branches is clear. The legislature, the branch closest to the people, should establish general policies that are consistent with the values and priorities of the public that elected its members. The executive, which has to implement policy, should have the lead in decisions that are more a matter of implementation and less one of principle or high strategy. That's the theoretical ideal, anyway.

The defense authorization bill is all over the map regarding the specific versus the general, and the proper versus the improper assertions of legislative authority, as well as the prudent versus the imprudent among the assertions that are constitutionally proper. In addition to down-in-the-weeds instructions (including on matters arguably more important to national security than the number of military bands), there are proper expressions of legislative will on questions of high policy. This includes a continuation of the ban on trying Guantanamo detainees in civilian courts and a ban on using U.S. troops in a ground war in Libya. I happen to disagree with the first of those bans and to agree with the second one, but at least they both represent a performance of Congress's constitutionally proper function.

In contrast, there is improperly vague and loose delegation to the executive of powers, especially the power to make war. A provision that reflects language preferred by Armed Services Committee chairman Buck McKeon (R-CA) authorizes the use of military force against “al-Qaeda, the Taliban and associated forces,” thereby mushing together in one conglomeration an assortment of players with vastly different objectives, while placing no limits on pursuing them all as enemies in perpetuity.

There is little reason to hope that Congressional practice will get closer to constitutional theory and principle any time soon. If Congress can essentially collude with the executive in disregarding the War Powers Resolution and do so little to assert its own power to declare war, then it is not about to restore a clean and well-defined separation of powers in other respects either.

In the meantime, with regard to the question of how many military bands to have, I'm willing to trust the judgment of whoever it is in the Department of Defense who decides such things. The issue will not be one of my criteria in deciding for whom to vote in the next Congressional election.