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Sapere aude - dare to be wise
Friday, January 05, 2007
Collision Course
Posted 10:21 PM by Luke
Next week when President Bush announces changes to the U.S.'s course in Iraq, he is expected to call for a surge in the number of troops there. Meanwhile, Speaker Nancy Pelosi and Senate Majority Leader Harry Reid have called for phased withdrawal of troops from Iraq beginning in the next 4 to 6 weeks. The two sides appear to be set on a collision course.

But what power do Congressional Democrats have to pull troops out? One option is to halt funding, but this will most likely be viewed as politically untenable. Another option may be to employ the War Powers Resolution (P.L. 93-148, 1973). Under the WPR, in the absence of a Congressional declaration of war or statutory grant of authority for war, the President has 90 days (60 plus a 30 day extension) to conduct military operations before having to withdraw troops.

In the case of Iraq, Congress has already authorized the use of force. But if the WPR requires Congressional authorization for the use of military force, the implication is that Congress may later remove that authorization. However, this is a relatively untested legal issue.

If the Democrats do try to de-authorize the war in Iraq, President Bush would likely ignore them, claiming the WPR to be unconstitutional. This pits the President's Constitutional role as commander-in-chief against Congress' power to declare war. The Supreme Court has never heard a challenge to the WPR. One indication, however, of how the high court would act may be found in the 2000 D.C. Court of Appeals case Campbell v. Clinton.

In that case, the court refused to grant Tom Campbell, a member of the U.S. House of Representatives standing against President Bill Clinton, when Campbell claimed that Clinton violated the WPR in directing troops beyond 60 days in Yugoslavia. The court argued that Congress has ample outside of judicial remedy to halt hostilities--namely, stopping funding.


The conditions are ripe for this issue to come before the courts. I would appreciate any perspectives, disagreements, and/or corrections, any of you may have in regards to my brief analysis in this post.

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