A Different Way for Congress to Confront the President on War Powers
Last week’s votes should not be the only lines Congress attempts to draw
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It was no surprise that Congress rejected a measure directing the president to terminate the attacks on Iran unless he obtains specific legislative authorization. Trump could expect that his party would not buck him. It is also always unlikely that lawmakers will vote to pull the plug at the outset of intensive military action abroad and risk the charge that it is abandoning the men and women in uniform. This vote ended what passes, for the moment, as Congressional self-assertion on war powers. And it leaves the matter in somewhat worse condition than before. Presidents use these votes to claim Congress’ “acquiescence” in executive “practice” and strengthen their argument that they can do as they please in the name of pursuing the national interest of the United States.
It might be time to try another approach—one that presses the administration on its legal position and clarifies in unmistakable terms what is at stake in the currently one-sided conflict between the branches about the scope of a president’s war powers.
Right now, for all practical purposes, presidents can decide on their own to deploy force to any extent, for any duration, for any reason, and they do so in confident reliance on open-ended tests their own lawyers have helpfully devised. In the current situation, which the president and his secretary of defense have repeatedly characterized as a war, the Office of Legal Counsel would find it—in Jack’s words—“easy” to defend the president’s actions as constitutionally permissible without congressional authorization. The legal theories now available under extant OLC opinions do not seem to leave any room outside politics and public pressure for limits on presidential war-making.
This is, for the executive branch, the happy outcome of having your own lawyers in charge of the legal debate. Congress does not issue legal opinions on these questions; the executive branch does. The president can turn for those opinions to lawyers, such as those in the Office of Legal Counsel, who in administrations over time have been charged with providing an “accurate and honest appraisal of applicable law” but also “facilitating the work of the Executive Branch and the objectives of the President, consistent with” their legal view. The history shows that, especially in national security matters, the lawyers find a way to facilitate. And in this administration, this president has taken aggressive steps to ensure that his lawyers are dependably responsive to his will, expected to take orders and salute smartly.
Is the public aware that we have reached this point? Perhaps, and it may be that it cares only if these uses of force do not produce the expected results, or their costs in blood, treasure and economic impact outweigh the asserted national security and foreign policy rationale. But it is also possible that public understanding of the claims of boundless president authority is limited. It is not widely understood that, as Jack has written, presidents operating on this claim of authority can wield nuclear weapons as they choose. And polling indicates that members of the public who learn about this authority are not comfortable with it.
Rather than hope, at this stage, to stop the Iran war in progress, congressional critics of boundless presidential war-making power might propose a measure that specifies how Congress understands the constitutional limits on that power. While Congress does not issue opinions, it can use a joint resolution to the same effect. It can use such a measure to reinvigorate its position under the War Powers Resolution without having to undertake the far harder task of passing amendments to it. In this way, Congress can respond to the administration without seeking in all futility to stop, at least now, the ongoing war, which it does not have the votes to do. The members who would not vote at this time to end the attacks on Iran might consider supporting a clear statement of Congress’s constitutional position.
This approach could help in three ways.
First, it is a way for Congress to confront the executive branch on issues now almost exclusively in the control of administration lawyers and may lay the foundation for a more informed debate about presidential war-making powers in the future as this conflict, and future engagements, unfold.
Second, as noted, it will establish a clear congressional counterpoint to the executive’s broad views of unilateral war-making power, establishing a record that Congress does not acquiesce in the president’s view of his authority.
Third, while the president will certainly veto such a measure, this will leave no doubt where, as a constitutional matter, he stands: He can just do what he wants. This puts a fine point on what certainly seems to be the case, and it might move the Congress—if not immediately, then eventually—into taking its constitutional responsibilities more seriously. The chances of Congress rousing itself from its stupor may also increase if a clear fight over constitutional first principles begins to affect public opinion.
Here is one potential version of such a resolution—a first cut, for discussion’s sake:
JOINT RESOLUTION
To Establish the Requirements for Congressional Authorization of the Deployment of United States Armed Forces against the Islamic Republic of Iran
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
Section 1. Findings
Congress makes the following findings:
Congress has the sole power to declare war under article I, section 8, clause 11 of the United States Constitution.
The President has a constitutional responsibility to take actions to defend the United States, its territories, possessions, citizens, service members, and diplomats from attack, and to deploy armed force in circumstances where the President determines that urgent action is required to protect the vital national security interests of the nation.
The President’s constitutional responsibility to protect and defend the United States or the vital national security interests of the United States does not extend to any and all uses of force that the president may deem necessary without regard to Congress’ exclusive constitutional power to declare war.
Opinions issued by the Department of Justice Office of Legal Counsel that are inconsistent with the subparagraph (3) of these Findings and Section 2 of this Resolution are not a constitutional basis for the President’s deployment abroad of Armed Forces of the United States. Such opinions include, but are not limited to, the 2002 Opinion on the Authority of the President Under Domestic and International Law to Use Military Force Against Iraq and the 2002 Re: Authorization for Use of Military Force Against Iraq Resolution of 2002.
Presidential use of force to protect the vital national security or foreign policy interests of the United States, other than where necessary to repel an attack on the United States or its armed forces, constitutes a constitutional exercise of executive authority only in the following circumstances, except where Congress has declared war or enacted an authorization for a specific use of force:
To respond to a foreign military threat that severely and directly jeopardizes the vital national interest of the United States under emergency conditions that do not permit sufficient time for Congress to consider a statutory authorization or a declaration of war;
To extricate citizens and nationals of the United States located abroad from situations involving a direct and imminent threat to their lives;
To forestall an imminent act of international terrorism directed at citizens or nationals of the United States, or to retaliate against the perpetrators of a specific act of international terrorism directed at such citizens or nationals; and
To protect internationally recognized rights of instant and free passage in the air and on the seas in circumstances where the violation, or threat of violation, of such rights poses a substantial danger to the safety of American citizens or the national security of the United States.
Section 2. The Use of United States Forces for Hostilities Against the Islamic Republic of Iran
(a) United States Armed Forces actions in support of military actions against the Islamic Republic of Iran constitute, within the meaning of 4(a) of the War Powers Resolution (50 U.S.C. 1543(a)), either hostilities or a situation where imminent involvement in hostilities is clearly indicated by the circumstances into which United States Armed Forces have been introduced.
(b) For purposes of this section and consistent with the War Powers Resolution, “hostilities” means a substantial or intensive planned military engagement, including by air or sea, of a nature, scope and duration that involves the risk of U.S. military casualties and the potential for escalation.