Why Would Congress Surrender?

By Fred Barbash
Washington Post

In a matter of days the Senate is likely to begin debating several nonbinding resolutions on the president's plan for a troop buildup in Iraq. As the battle is joined, both houses of Congress need to be reminded that the stakes go well beyond this particular buildup, this particular war and even this particular presidency.

At issue is the constitutional law governing the war power of the executive branch, specifically the vastness of the "battlefield" over which President Bush claims inherent authority as commander in chief. Also at issue are all the comparable claims yet to be made by presidents yet unborn, armed with the precedents being set right now.

In these matters, there is no such thing as inaction. In a contest between two branches over separation of powers, silence speaks as powerfully as words.

That's because the Supreme Court rarely involves itself in disputes between Congress and the executive, expressly making it a two-way conversation -- a "shared elaboration" or "shared dialogue" in the words of scholars -- between the elected branches. 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.

(Continued here.)