Iran – As Congress prepares to send the president a resolution directing him to terminate the use of US forces for hostilities against Iran the second joint resolution on war powers it has passed in a year (the first related to Yemen)—it is starting to seem like legislators are finally getting serious about their responsibilities for matters of war and peace.
Is this a sea change in the making?
We’ll see. It’s encouraging to witness a majority of Members put themselves at least a little bit on the line when it comes to war powers issues.
Still, there is an element of political theater or what journalist Charles Peters calls “Washington make believe” to the legislative exercise, which has no meaningful chance of becoming law (the President will veto it and Congress lacks the votes for an override), and which the executive branch might well treat as an empty directive even if enacted.
Indeed, it could well be that the administration’s unauthorized strike on Iranian General Qassem Soleimani (as well as a widely reported strike against a lower-level Iranian commander, Abdul Reza Shahlai, in Yemen on the same day) is remembered less for the congressional resistance it has spawned than for the decline in congressional war powers that it so neatly encapsulates.
Let’s hope not. After all, the nation’s Founders had a reason for investing in Congress the power to declare wars and to raise and provide for the forces to fight them.
They believed that a large deliberative body would be less likely to be blown by political winds into imprudent wars than the president, and reserved for the president the power to act unilaterally in taking the nation down the warpath only when necessary (in their words) to “repel a sudden attack.”
Even if post-war administrations have too often seen fit to disregard the Founders’ design—unilateral presidential action in the Korean War, parts of the Vietnam War, Kosovo, Libya, and Yemen among other precedents helped pave the way for January’s reckless strikes—that does not mean Congress has to throw in the towel on its rights and responsibilities.
In considering what war powers reform might look like, step one is to size up the problem—and the Iran strikes are instructive on this point. Step two is to consider our options.
Sizing up the Problem: Three Takeaways from the Iran Strikes
First takeaway: The episode demonstrates how completely the executive branch has abandoned the traditional constitutional rule that such unilateral force can be used only to repel a sudden attack (i.e., to deal with a present or imminent danger). If anything, the January 2 strikes represent a near-perfect inversion of that concept. The strikes didn’t respond to a threat of sudden attack so much as they created one. In the days and weeks after an American missile killed Soleimani, the US sought to protect its personnel by relocating some to bases outside Iraq and restricting the movement of those who remained. Iran’s inevitable counterstrike came on January 8, injuring (by still incomplete reports) more than 100 service members.
What’s more, while some administration officials (including the president) initially tried to make the case for imminence, they appear to have abandoned this narrative. The administration’s January submission to Congress on the legal and policy frameworks for the strikes nowhere suggests that a sudden attack needed to be averted, and in places leans toward arguing that the January 2 strikes could have been justified purely as a response to prior attacks on U.S. forces and interests by Iran and Iranian-backed groups. So much for imminence.
Second takeaway: The Trump administration can look to decades of bipartisan precedent to justify its action. Start with the now 17-year history of interpreting the 2002 Authorization for the Use of Military Force Against Iraq—which on its face authorizes the use of force to defend “against the continuing threat posed by Iraq”—to include what Marty Lederman has described on this site as “ancillary authority.” Since the Saddam Hussein regime was removed in 2003, ancillary authority has helped Executive Branch lawyers justify the continued deployment of U.S. troops in Iraq for everything from post-Hussein stabilization operations to counter-ISIS missions. Some of these justifications are a real stretch, as Ryan Goodman and Steve Vladeck lay out here, but the years-long history of reading a statute focused on authorizing conflict against the threat posed by Iraq? to authorize conflict against threats emanating from Iraq could only make it easier for the Trump administration to argue (as it does in its January notification and OMB statement ) that this authority also allows it to “address” threats posed by Iranian-backed militias.
Of course one might argue—as Goodman and Vladeck have done (correctly in my view)—that it crosses a line to suggest that Congress intended the 2002 AUMF to authorize an attack 18 years later against a country not even named in the statute and against the wishes of the legitimate government of Iraq. But as Jack Goldsmith has pointed out in Lawfare, the 2002 AUMF—and for that matter other sources of statutory authority (such as the 2001 AUMF, relevant to the fight against ISIS, and arguably the legislation that appropriated funds for missions in Iraq)—are not the only source of claimed authority for the Executive Branch. The Executive Branch also claims authority under Article II of the Constitution, the contours of which are set out in various opinions authored by the Justice Department’s Office of Legal Counsel (OLC).
Those claims are sweeping. OLC’s most recent published opinions on the use of force (relating to the Libya (2011), Sinjar (2014) and Syria (2018) interventions) suggest that force may be used unilaterally to protect a “national interest” so long as the anticipated nature, scope and duration of the resulting conflict won’t amount to “war in the constitutional sense.” Whether or not these rubbery tests can pose meaningful constraints on the executive branch—especially given that they were constructed and are given content by executive branch lawyers—is almost beside the point since, as Goldsmith explains, this line of opinions coexists with even broader claims made in two post-9/11 OLC opinions. Those opinions (issued in the context of the war on terror (2001) and Iraq (2002)) speak in soaring terms of the president’s constitutional prerogatives, when it comes to self-defense and the protection of national interests, and do not limit their claims of authority by reference to the nature/scope/duration test.
Critics of the latter opinions and the more or less unbounded unilateral power they place in the president’s hands argue that no one serious looks to them as authoritative, but it will be hard to make a convincing case that they are not at least a potential source of authority unless and until someone withdraws them subject to appropriate review (a task that presidential candidates who have criticized endless wars should put on their to-do lists).
Third takeaway: Congress is not in a great place to keep a repeat of the Soleimani strike from happening.
The bill that passed the Senate on February 13 and is expected to pass the House today directs the president to “terminate the use” of U.S. armed forces for “hostilities” against Iran. Certainly this sends a message to the executive branch that a majority of both houses lack the appetite for war with Iran. But legally it is without teeth.
There are multiple reasons for this. First, it won’t become binding law. By invalidating the so-called “legislative veto,” a 1983 Supreme Court decision INS v Chadha, is widely understood to have voided a provision in the 1973 War Powers Resolution that would have allowed both houses of Congress to stop a war by enacting a “concurrent resolution”—a bicameral resolution adopted by majority vote in both chambers. Consequently, the only way the Iran resolution will become binding is if the President signs it (he won’t) or if there are sufficient votes to overcome his veto (there aren’t).
Second, even if Congress were to summon the votes to make it binding, the executive branch could well argue that the directive to terminate the use of U.S. forces for “hostilities” was satisfied after January 8, once the exchange of fires between the U.S. and Iran had settled down. For decades, the executive branch has taken upon itself to flesh out the meaning of the term “hostilities” (which is not defined in the 1973 resolution) and it has done so narrowly. During the so-called Tanker Wars during the 1980s, the Reagan administration took the position that each skirmish with Iran in the Persian Gulf was a separate case of hostilities. This was a hedge against the provisions under the 1973 resolution that require a withdrawal from hostilities after 60 days absent congressional authorization: By the administration’s logic, the 60-day clock stopped and restarted after every skirmish. In the present case, a similarly segmented approach to “hostilities” would allow the Trump administration to argue that the legislation is a dead letter in that it deals with a situation that’s already in the past and therefore imposes no meaningful requirements on the executive. (The legislation seeks to deal with this by arguing that the administration has entered a conflict with Iran that constitutes ongoing hostilities, but it is hard to imagine making that point stick if the administration insists that this is inconsistent with its historic interpretation of the term “hostilities” and that there is no such conflict in any case.)
Of course, one could imagine different legislation that might be more effective—for example, legislation that denies the president the use of appropriated funds for unauthorized strikes on Iran except in narrowly-defined self-defense circumstances. This would avoid disputes over the meaning of “hostilities” and sit squarely within Iran’s Congress power of the purse. Indeed, Representative Ro Khanna and Senator Bernie Sanders have suggested legislation along these lines.
But it’s been difficult for this legislation to gain momentum. That is partly because—unlike the bill currently making its way through Congress—the Khanna/Sanders legislation doesn’t benefit from the expedited procedures associated with the 1973 War Powers Resolution. Those procedures apply by their terms to any “joint resolution or bill introduced in either House which requires the removal of United States Armed Forces engaged in hostilities.” (Emphasis added.) There appears to be some flexibility in how those procedures apply (as Scott Anderson and Margaret Taylor discuss here , the Iran bill that passed the Senate in February was able to benefit from those procedures even though the bill directs the president to “terminate” the use of U.S. forces for hostilities rather than “remove” them). Still, applying those expedited procedures to a resolution that focuses on something other than ending “hostilities” would almost certainly be a bridge too far. And once a statute is framed in terms of “hostilities,” it is doomed to be dragged into the interpretive thickets described above.
Muddle Through or Reform?
Though the dissipation of Congress’s powers has led commentators on both the left and right to note the growing concentration of war powers in the exclusive hands of the president, there is hardly agreement on how much of a problem it is, or what to do about it.
One option is to accept the current system for what it is and muddle through. This approach treats the narrowest vision of unilateral presidential war powers—i.e., that they are limited to repelling sudden attacks and last only as long as it takes the President to seek authority (or be denied it) from Congress—as a ship that has sailed. It accepts that the traditional rule has been superseded by decades of bipartisan practice and essentially leaves questions about the four corners of presidential power to be decided by the Office of Legal Counsel.
Perhaps the biggest selling point of this approach is that there may be no practical alternative. Matt Waxman makes this among other arguments here, noting that power has piled up in the hands of the President for a series of reasons that aren’t likely to change: Congress does not like taking hard votes on matters of war and peace; Members may feel that the President needs to have a free hand to use globally deployed U.S. troops to advance U.S. interests; and they may in Waxman’s view be right. Waxman also points out the challenges in drafting a modernized war powers resolution that would effectively cover the panoply of ways in which the U.S. projects force abroad (including, for example, through military cyber operations) while noting that there may be other more useful ways for Congress to become more engaged on war powers issues: It can send political signals by introducing legislation like the Iran and Yemen bills, working to deny funding for conflicts it does not support, and calling oversight hearings.
If Congress applied those strategies, and executive branch lawyers could be relied upon to apply the “national interest” and “nature/scope/duration” tests with rigor, is there a chance the political branches could muddle through to a more responsible approach on matters of war and peace?
It’s a hard question to answer in part because the premise is so counter-historical. After decades of under-motivated Congresses and over-reaching presidents, what reason is there to expect that either political branch will adopt new habits of their own accord? And while it may be true that the current posture co-evolved with the way in which the United States has projected power in the post-war era, that has not produced unalloyed benefits. Of course it goes too far to suggest that congressional involvement would have steered the U.S. past all of the worst foreign policy decisions of the post-war era. Indeed, some of the most ill-fated examples of U.S. military adventurism (much of the Vietnam conflict and Iraq stand out) were authorized by Congress. But some important debacles weren’t (Libya and Yemen) and others rolled along under-examined for years under stale authorizations because Congress had little motive to step up and take a strong position on whether the benefits were worth the costs (Afghanistan/aspects of the war on terror).
What may be most concerning about the muddle-through model is the way in which it turns war into an elite project—germinated in the White House, approved by executive branch lawyers, and (particularly in this era of air wars and remote piloted aircraft) often beyond the sight or influence of the American people. Whether or not one considers this an affront to constitutional design, the current situation is not fair to taxpayers or service members’ families, much less for the innocents abroad who often bear the heaviest brunt of these conflicts — all of whom deserve to have these military commitments more closely scrutinized.
This brings us to the second option—which is to reform the war powers framework. The idea of war powers reform is hardly new. Indeed, in 2008 a bipartisan commission chaired by former Secretaries of State James Baker and Warren Christopher produced a model statute that was intended to replace the 1973 resolution. Many of the key ideas from their model found their way into a draft bill sponsored by Senators John McCain and Tim Kaine—The War Powers Consultation Act of 2014—which former DOD General Counsel Jeh Johnson endorsed in a recent speech before the American Constitution Society.
The two major features of the Baker/Christopher model are a highly articulated consultation mechanism—which would encourage the political branches to exchange views in advance about whether to engage in “significant conflicts”—and a requirement that both chambers vote on a “resolution of approval” to be introduced within 30 days after the deployment of U.S. forces into an unauthorized significant conflict. If the approval resolution fails, there is an option to vote for a resolution of disapproval. The Baker/Christopher model dispenses with the 1973 resolution’s notification requirements for new deployments of combat-equipped troops and substantial enlargements of forces already on the ground. It does not include any mechanism to force a removal of U.S. forces from combat.
What’s curious about the Baker/Christopher model is that rather than recapturing the ground Congress has lost on matters of war and peace, it more or less formally cedes it. Because of the way “significant armed conflicts” are defined, the statute’s requirements would apply only to wars that last or are expected to last more than a week (never mind the damage the U.S. military could inflict and the course of events it could shape in six days if it set its mind to it). The term “significant armed conflicts” includes broad carve-outs for, among other things, certain reprisal actions against terrorists and state sponsors of terrorism, and “acts to prevent criminal activity abroad.” The consultation requirements allow the president to put off such exchanges until three days after a conflict has commenced if secrecy demands it, virtually guaranteeing that no administration will ever feel obliged to engage in prior consultation.
What’s more, whether or not future Congresses would feel bound to vote their approval on the terms that the statute lays out, it is not entirely clear what would come of it even if they did. A vote of approval is not a use of force authorization, a vote of disapproval is not an instruction to withdraw troops, and neither would be effective in any case without presidential signature.
By : Stephen Pomper