It may come down to a court battle between Vermont and the United States government. That's the general consensus among legal experts who have examined Senate bill 362. That bill that calls on Governor Jim Douglas to exert power over Vermont National Guard troops and bring them home from Iraq.
Authorization is the key issue in this bill, because the 1986 Montgomery Amendment says the president has control over National Guard troops if Congress has authorized the use of power. The 2002 Authorization for the Use of Military Force Against Iraq allows President Bush to use the Armed Forces to defend the country against the continuing threat posed by Iraq, and to enforce all relevant United Nations Security Council resolutions regarding Iraq.
There are currently no U.N. Security Council resolutions that need implementation in Iraq, and backers of S.362 say the treat posed by Iraq is gone.
"Some could point to the President's statement several months after it began, quote, "mission accomplished" close quote, some would argue that that signals that the congressional authorization has expired," says Senator Vincent Illuzzi, R-Newport.
Illuzzi chairs the Senate Committee on Economic Development, Housing and General Affairs, which heard from legal experts on Tuesday regarding the bill.
Several experts say war appropriations may be the key in determining authorization.
"The question that's an interesting one is whether congress's actions, by continuing to adopt appropriations for the war, constitute a kind of implied authorization," says Peter Teachout, a constitutional law professor at Vermont Law School.
Most of the constitutional law experts who testified before Vermont lawmakers agree there is some legal ground for the bill to move forward, and that it would likely result in a court battle. Even so, some question whether it is a good idea.
"When states decide to play chicken with the federal military and the Pentagon in the middle of two shooting wars, that can be problematic," warns Michael Mello, also with the Vermont Law School.
Congress could potentially cut funding for the Guard, and Representative Michael Fisher says he's already heard comments that the bill is unpatriotic, but the backers of the bill say they are willing to risk that title if it means sparking a debate about the constitutional use of military forces.
Vermont is not alone in looking at this issue. Minnesota, Pennsylvania, and Rhode Island are considering similar legislation. Legal experts say at the very least, this type of bill could force Congress to clarify its authorization of force in Iraq.