THE PURSE AND THE SWORD.

THE PURSE AND THE SWORD. Marty Lederman argues (correctly) that the Constitution plainly gives Congress the formal powers to prevent the senseless escalation of the Iraq conflict. Matt brings up another question: would the courts actually provide a remedy if Bush simply decided to ignore a Congressional enactment preventing the escalation? Unfortunately, history strongly suggests that the courts would defer to the president. The most obvious recent example is Vietnam, when William O. Douglas spent years trying to convince his colleagues that the escalation of the war was illegal. By the early '70s, there were probably several justices who thought this argument was defensible as a legal matter, and certainly a majority of justices were opposed to the war (at least before Harlan and Black were replaced by Nixon appointees.) But Douglas couldn't even persuade his Brethren to grant cert, and surely one reason for this is that if they had told Nixon to bring back the troops, and he refused, there was nothing the Court could have done. And such strategic deference has an extensive history -- as many of you know, in the first case in which the Court struck down an act of Congress, Chief Justice John Marshall carefully structured the decision so that the Court did not issue a writ that Jefferson and Madison certainly would have ignored.

The Supreme Court has not, of course, been uniformly deferential to the executive in wartime -- but cases where the courts have acted haven't involved withdrawing troops in the field. Regrettably, if Bush wanted to defy the will of Congress with respect to his proposed escalation, there is unlikely to be a judicial remedy in the offing. If a Court that had the four last great liberal justices on it refused to act during Vietnam, there's almost no chance of this happening today.

--Scott Lemieux

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