California senator's anti-war bill faces challenges

If the measure were ruled constitutional, it would face a presidential veto.
MCCLATCHY NEWSPAPERS
WASHINGTON -- Sen. Dianne Feinstein wants Congress to undeclare the war in Iraq.
Other leading Democrats agree, following a lead the Californian took with the introduction of a bill a week ago. But as lawmakers craft their latest Iraq strategy, they could be entering either a constitutional minefield or an exercise in futility.
"I have never, ever heard of a declaration of war being taken away," Ruth Wedgwood, a Johns Hopkins University international law professor, said Friday. "It's certainly constitutionally ambitious, if not outrageous."
Congress has declared wars, such as World War I. Congress has adopted peace treaties, as happened after World War II. Congress has authorized force, twice against Iraq, and Congress has cut off war funding, effectively ending the Vietnam conflict.
But removing a president's war-making authority while it's still being used is something different. It has happened, once, but it accomplished little.
Feinstein's legislation would end on Dec. 31 the U.S. authorization to fight in Iraq. It would permit some U.S. forces to remain there, though. Senate Democratic leaders have adopted a similar concept but are still tinkering with language.
Political hurdles
They face potentially insurmountable political hurdles.
"If the issue came before the Supreme Court, my guess is the court would hold that Congress has the power to repeal the use of force just as it can repeal any other statute," said University of Virginia law professor Robert Turner. "However ... any such effort would have to be submitted to the president and could be vetoed."
With Democrats controlling the Senate by a thin 51-49 majority, it would be difficult to rally the 66 votes needed to overcome a veto by President Bush.
Even if Democrats get a resolution passed into law, ambiguities would linger:
Would the president simply employ his executive authority as commander in chief to keep conducting the Iraq war as he sees fit?
Would this bring to a boil a long-simmering conflict over the 1973 War Powers Act, by which Congress limited presidential action?
How might loopholes undermine the resolution? Feinstein's measure, for instance, would allow U.S. forces to train, equip and advise the Iraqi military. They could protect themselves, secure borders, fight terrorists and provide logistical support in Iraq.
"This resolution is without much content because of those exemptions," Wedgwood suggested.
Cites power of Congress
Feinstein, though, contends that any reasonable president would heed a clear congressional signal.
"Congressional action sends a strong message," Feinstein said Friday. "And to continue a war without the support of Congress is a very risky thing because it becomes totally an executive-branch war."
Feinstein added that she would "reserve the right" to pursue her resolution later, but for now she'll align with what Democratic leaders come up with. Senate Majority Leader Harry Reid's spokesman, Jim Manley, said Friday that "no final decision has been made."