Ok, this is probably breaking a zillion diary rules so troll rate me to oblivion below. But given the heated debate yesterday about whether Congress can or can't "micromanage" the way Bush conducts his war please see what Marty Lederman has to say over at Balkinization:
Does it make any sense for [Democrats] to disclaim some of Congress's most important powers for checking the Executive, when there is a rich history of such statutory limitations and where there is almost no judicial authority questioning Congress's power?
Read more at the break
Lederman writes:
Even if there were a prohibition in the Constitution against so-called congressional "micromanagement" of a war -- and there's not... There would, instead, simply be limitations on a war imposed by statutes passed with the President's signature or by supermajorities of both Houses of Congress over the President's veto.
And he goes on to list MANY historical examples of exactly these types of statutory limitations:
- The McCain Amendment prohibits the President from using cruel, inhuman and degrading treatment against Al Qaeda prisoners
- The War Crimes Act
- The War Powers Resolution
- FISA
- The Habeas Act
- The UCMJ (upheld in part in Hamdan, over the President's objections that it would impinge on his ability to defeat the enemy)
- The Boland Amendments
And the kicker:
...numerous other statutes have authorized hostilities only for certain purposes and on certain conditions, thus imposing implicit limitations (e.g., the statute upheld in Little v. Barreme; the 1993 Defense authorization provision that funds could be obligated in Somalia beyond March of 1994 only "to protect American diplomatic facilities and American citizens, and noncombat personnel to advise the United Nations commander in Somalia"; etc.); -- and odds are that Senator Biden voted for the vast majority of these statutory limitations on the Commander-in-Chief . . .
I know, I know, I'm probably quoting too much here - if this has been diaried already I'll delete - I was going to just poste this as a comment but I didn't see any recent diaries on this topic and I thought Lederman's take on this was different than I've seen elsewhere. He does point out that it would take a supermajority to override a Bush veto, so it certainly wouldn't be easy, but there doesn't seem to be any constitutional reason it couldn't be done.
I'm no lawyer, but his arguments seem pretty solid to me, given the historical examples. Feel free to dispute this in the comments.
(edit - fixed title)