I taped a diavlog with Ann Althouse on Monday during which we wound up mostly agreeing that the Democratic congress was unlikely to change very much about Iraq, largely because they can’t change very much. As I noted yesterday, however, after we recorded the episode, the Center for American Progress released this briefing paper on congressional powers over military deployments and also organized a conference call on the subject. Armed with said facts and information, I’m now much more inclined to think the Democrats have some options.
I continue to worry, however, that if Democrats merely try to halt the surge, the issue would be regarded as non-justiciable. Marty Lederman doubts this, but let me try to sketch out a scenario. The Bush administration requests supplemental funding for Iraq. The congress, as per the Center’s suggestion, attached a provision to the appropriation mandating that troop levels not rise above some target figure. Bush signs the appropriation and issues a signing statement saying that his commander in chief power allows him to blah blah blah. Then Bush simply orders some brigades to Iraq such that force levels would pass over the cap and the orders duly pass down the chain of command — troops begin to move. What happens next? Someone sues? The Supreme Court orders one of the division to return to the USA? Which one? Federal courts normally give wide deference to executive authority on national security measures and I just find it very hard to imagine them getting involved in that kind of a dispute.
Just as I say in my column on the personnel shakeup I think that for better or for worse (which is to say for worse) we’re more-or-less stuck with Bush and his poor decisionmaking no matter what anyone else says or does.