War Powers Resolution to face Constitutional Challenge?

[Kulaf]

http://www.cnn.com/2011/POLITICS/06/15/ ... ?hpt=hp_t1

This may come to backfire on Congress if they actually follow this through to its logical conclusion......which would be a ruling by SCOTUS on the constitutionality of the War Powers Resolution. I've made no secret in my belief that this resolution, as well as others passed in the wake of the Nixon administration, was a far reaching unconstitutional infrigement on the powers of the Presidency.

[Ddrak]

Certainly will be interesting to see how far Congress would try to push this, especially if they're trying to appeal to the hawks during the election season.

Dd

[Embar Angylwrath]

http://www.politico.com/news/stories/0611/57032.html

It's official. Congress is going to litigate the issue.

[Ddrak]

This is probably the most telling part:

But former Rep. David Skaggs (D-Colo.), the co-chairman of the Constitution Project’s War Powers Committee, called the Kucinich suit “right on the merits” but certain to be dismissed on procedural grounds because courts have determined members of Congress do not have standing to file such suits.

Whether they're right or not, if they don't have standing then there's nothing they can do about it. The interesting question would be exactly who does have standing? Probably the military?

Dd

[Kulaf]

Yeah we had the same talk about how the President can challange a law.....and basically the only way he can do it is to not follow it.

Couldn't they drop the lawsuit and instead bring impeachment charges?

[Kulaf]

For reference:

http://scholar.google.com/scholar_case? ... i=scholarr

Sounds like Congress would have to pass a resolution ordering the removal of troops and then if the President ignored the order, Congress would have standing to sue due to vote nullification.

[Embar Angylwrath]

That's a tricky issue. How does one resolve the fact that the President is Commander in Chief and has the ultimate say in how troops are deployed and used? Seems to me Congress is limited to declaring war and funding of the military, but their power does not extend to specific military deployments. I don't think they have the constitutional authority to direct troops. That's clearly in the purview of the President. The way for Congress to remove troops from a military theater without actually passing a resolution to remove them (which I think is unconstitutional), is for Congress to remove funding for a specific military action.

[Kulaf]

Hence why I think the War Powers Resolution is unconstitutional.

TITLE 50 > CHAPTER 33 > § 1544 Congressional action
(c) Concurrent resolution for removal by President of United States Armed Forces
Notwithstanding subsection (b) of this section, at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

[Ddrak]

Excellent reference, Kulaf, and I think the exact same argument would apply here.

The whole thing is a god-awful complex legal issue because even if Congress voted to defund the mission, there would be all sorts of argument about what constituted "control" of the armed forces and what didn't. Not sure they even want to get into that.

Dd