How Congress could put limits on Bush in Iraq

Q. What is the source of Bush’s authority to conduct military operations?

The October 2002 congressional authorization to use force is his legal authority, although some members of Congress say that that resolution is now defunct.

Repeated votes to pay for Iraq deployment
Bush also gets authority from the repeated congressional votes to pay for military operations in Iraq, most recently on Sept. 9, 2006 when the House voted, 398 to 23, to pay for Defense Department spending for the current fiscal year. Among those voting for that bill were Murtha and House Speaker Nancy Pelosi, both prominent critics of the Iraq war.

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Last June the House also voted, 407 to 19, to approve $50 billion for operations in Iraq and Afghanistan. Again Pelosi and Murtha were among those voting “yes.”

Q. Can the courts order Bush to cease operations in Iraq?

Probably not.

A federal appeals court decision in case called Campbell v. Clinton indicates that members of Congress do not have legal standing to bring a suit challenging a war, as long as the majority in Congress votes to keep paying for it.

On March 24, 1999, President Clinton announced the start of NATO air and cruise missile attacks on Yugoslavia; he told Congress he was acting consistent with the War Powers Act.

Thirty-one members of Congress filed suit against Clinton seeking a judgment from the federal courts that his use of U.S. forces was illegal under the Constitution and the War Powers Act.

Court: Cut off funds if you want
But the federal appeals court in D.C. ruled unanimously in 2000 that “Congress always retains appropriations authority and could have cut off funds for the American role in the conflict,” but chose to not do so.

Since Congress has a broad range of other legislative means it can use to stop a war, the court said, “Congressmen may not challenge the President's war-making powers in federal court.”

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Q. Can a governor of a state refuse to allow his state’s National Guard units to be deployed overseas, for instance to Iraq ?

Almost certainly not.

After two governors refused to consent to federal training missions in Central America for their state’s Guard units, Congress passed the 1986 Montgomery Amendment, which provides that a governor cannot withhold consent with regard to active duty outside the United States because he or she objects to the location or purpose of such overseas duty.

The governor of Minnesota fought the case to the Supreme Court, arguing that the Montgomery Amendment violated the Militia Clauses of the Constitution.

But the justices upheld the Montgomery Amendment and said a governor could veto overseas deployment only when it would interfere with the Guard's ability to address a local emergency within its home state.

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