Members Of The 82nd Airborne Deploy To Iraq
Logan Mock-bunting  /  Getty Images file
Soldiers of the 82nd Airborne Division wait in line to board a plane at Pope Air Force Base on January 3. About 3,300 members of the 82nd Airborne were deployed to Kuwait.
By Tom Curry National affairs writer
updated 1/15/2007 1:07:02 PM ET 2007-01-15T18:07:02

As Congress considers whether to pay for military operations in Iraq, here are some questions and answers on how Congress has limited deployments in the past.

Q. Can the Congress vote to end the funding of the military deployment in Iraq?

Yes, it can, and there is precedent for it doing so. In 1973 Congress voted to end funding for military operations in Vietnam, Laos and Cambodia.

But most of the Democratic leaders in Congress do not want to cut off all funding for military operations in Iraq. They want to pressure or persuade President Bush to begin a withdrawal of troops.

Armed Services Committee chairman Rep. Ike Skelton, D- Mo., said this week, “We’re not about to cut off funding for troops. We know that. That would be injurious to our troops and their families.”

Asked Wednesday about ending the funding of military operations, Sen. Barack Obama, D- Ill., “The problem is that you’re using a mallet, rather than a scalpel.”

Q. Can the Congress vote to pay only for some specific operations and missions in Iraq — such as attacking al Qaida targets  — and not pay for others, such as intervening in a Sunni-Shia warfare?

A. Some Democrats are trying to find a way to do this.

A leading Democrat on the Senate Armed Services Committee, Sen. Jack Reed, D- R.I., said he wants to fund such missions as “continuing to train Iraqi security forces, attacking al Qaida elements and potential terrorists wherever they might be, Iraq or Somalia or elsewhere, and also ensuring that the territorial integrity of Iraq is not abused by its neighbors.”

But he opposes U.S. troops getting entangled in Sunni-Shia fighting.

Obama confronts 'big dilemma'
Asked if there’s a way to pay for some operations in Iraq, but not pay for a surge of 21,500 troops as Bush proposed, Obama said “That’s what I’m trying to figure out…. My understanding so far is that we can do it constitutionally, but as a practical matter if the president chooses to go ahead with a deployment and then simply runs out of money halfway through and those troops are already there, then you start getting into a game of chicken…. That is the big dilemma in trying to figure out what mechanism we can use to stop what I’m convinced is the wrong policy, without shortchanging the young men and women who’ve already been deployed.”

But the chairman of the Senate Foreign Relations Committee, Sen. Joe Biden, D- Del., disagrees with the idea of Congress paying only for specific missions in Iraq: “We have a standing army with a budget of hundreds of billions of dollars.  You can’t go in and, like a tinker toy, and play around and say, ‘You can’t spend the money on this piece and this piece.”

Q. The Senate will vote in the next few weeks on a non-binding resolution declaring that Bush ought to not send another 21,500 troops to Iraq. If the Senate passes this resolution, what practical effect will it have?

A. None, other than putting senators on the record. The resolution would not cut off funding for operations.

Q. What is first chance for Congress to try to limit how the funds are used in Iraq?

It will come sometime in February when Congress votes on a supplemental spending bill for Iraq. "If you're really serious about cutting off funds for the troops, that is the vehicle, the supplemental, not these sense of the Senate resolutions," said Senate Minority Leader Mitch McConnell Thursday. "That would be a cleaner way to debate this; it would be a serious debate with serious consequences, if you actually conditioned the money."

Q. Can the Congress vote to impose certain conditions or time limits on the funding?

“They could pass restrictive legislation if they wanted to. Politically it is difficult, but legally and constitutionally they have the authority,” said Louis Fisher, an analyst at the Library of Congress and author of the standard work, Presidential War Power.

In 1993, after U.S. forces were sent to Somalia, Congress passed legislation requiring all troops to be out by March 31, 1994.

Limits imposed in 1980s
Also, Fisher said, during President Reagan’s presidency, Congress passed legislation saying U.S. military advisors in Honduras could not go within 120 miles of the border with Nicaragua. Members of congress feared that Reagan might try to use U.S. forces to topple the Sandinista government of Nicaragua.

“Congress can definitely put on time limits and boundary limits,” Fisher said.

Sen. Edward Kennedy, D- Mass., has proposed putting a ceiling on the number of U.S. troops in Iraq; under his bill no more than the number already there on Jan. 9, 2007 could be deployed.

In the House, Rep. John Murtha, D- Pa., said he might move to prohibit troops who are now in Iraq from having their tours of duty extended.

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But any move by the Democrats to impose a time limit or a troop ceiling would need to muster 60 votes in the Senate, as Reed noted Wednesday. “We’re not in that big a majority,” Reed said.

And Biden criticizes the idea of a limit on the number of troops Bush could keep in Iraq: “It’s constitutionally questionable whether or not you can do that.  I think it is unconstitutional to say (to Bush), ‘We’re going to tell you (that) you can go, but we’re going to micromanage the war.’ When we wrote the Constitution, the intention was to give the commander in chief the authority how to use the forces, when you authorize them, to be able to use the forces.”

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.

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.”

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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