Trump’s Interpretation of the War Powers Resolution Is Wrong But Not Crazy
It builds on past presidential opportunism on the WPR
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In perhaps the least surprising legal development of the year, the Trump administration last Friday denied that the War Powers Resolution (WPR) of 1973 required withdrawal of troops from the war with Iran.
The only mystery was what the theory would be. Would the administration refuse to comply because, as the president, vice president, and secretary of state had recently said, the WPR was (in some unexplained way) unconstitutional? Nope. Would the administration extend the 60-day clock for 30 days under Section 5(b) in order to keep troops in the fight during a drawdown? Nope.
Instead, the president said in a letter to Congress that the “hostilities” (a WPR term) that began on Feb. 28 had “terminated” due to the April 7 ceasefire, after which there had “been no exchange of fire.” (This latter claim was highly misleading.) The letter’s logic was that because hostilities had ceased, so too had the duty to withdraw troops.
I find this interpretation of the WPR implausible. But it is far from the first time presidents have relied on implausible WPR interpretations to skirt the statute.
President Trump said over the weekend that “So many presidents, as you know, have gone and exceeded [the WPR],” and added: “It’s never been used. It’s never been adhered to.”
Trump is not right here, but he is not entirely wrong. Presidents and their lawyers have since the WPR was enacted massaged its loose, ill-defined, and at times overbroad language to circumvent the statute. The Trump position today builds on those WPR-stretching precedents. Still, Trump’s actions and actions by members of Congress show that it is wrong to say that the WPR is irrelevant or toothless.
A Page of History
On April 12, 1975, Office of Legal Counsel chief Antonin Scalia advised Attorney General Edward Levi that President Ford could lawfully send troops to South Vietnam to evacuate American and certain Vietnamese citizens endangered by a North Vietnam invasion of South Vietnam. Scalia acknowledged that WPR Section 2(c)’s statement of the president’s constitutional war powers “would clearly prevent” Ford’s contemplated action. But he noted that a different section (8(d)(1)) disclaimed an intent to narrow the president’s Article II constitutional powers, which he concluded allowed the action.
As Oona Hathaway once said, “there’s a good case to be made that [the Scalia] memo marks the beginning of the end of the War Powers Resolution.” But only the very beginning. Many other maneuvers in subsequent years would weaken it as a legal constraint.
One gambit has been to read the phrase “hostilities” in the WPR opportunistically. A trigger for the president’s duty to report to Congress under Section 4(a)(1) is the introduction of U.S. forces into “hostilities” or situations that clearly indicate “imminent involvement in hostilities.” And (glossing over important technicalities) the duty to terminate the use of military force under the WPR after 60 (or 90) days typically turns on whether “hostilities” persist at that point.
Presidents’ lawyers have long construed the phrase “hostilities” to deny the applicability of the WPR in “hot war” situations.
For example, the Reagan administration appeared to deny that U.S. troops were introduced into hostilities or imminent hostilities for WPR reporting purposes when over 1,000 Marines were sent to Lebanon for supposedly non-combat operations, even after “Marines were killed or wounded” from hostile fire in August 1983. (Congress disagreed and enacted a law, signed by Reagan, declaring the WPR clock triggered but authorizing the mission for 18 more months. Despite Reagan’s signing statement questioning the WPR trigger, this was a rare congressional war powers victory.)
Similarly, the Obama administration in its 2013 congressionally unauthorized Libya conflict claimed at the ostensible WPR deadline that it was not engaged in “hostilities” even though it was dropping bombs to suppress Libyan air defenses and “against discrete targets” in Libya. The administration in testimony by State Department Legal Advisor Harold Koh maintained that this situation did not amount to “hostilities” because the U.S. mission, exposure of U.S. forces, risk of escalation, and military means were all “limited” at the deadline, especially compared to major ground wars like Vietnam that the WPR framers mainly had in mind. In reaching these conclusions, Koh said that “hostilities” is an undefined and “ambiguous standard” and that Congress had “no fixed view” on what it would encompass.
The Lebanon and Libya examples raise the question of what intensity of conflict amounts to “hostilities.” A different way that presidents have exploited “hostilities” is by treating particular military events as discrete “hostilities” for purposes of starting and stopping the WPR clock and thus avoiding its overall impact even though the events were part of a consolidated military operation.
The Reagan administration used this tactic in the 1987-1988 “Tanker War” against Iranian forces after the United States agreed to reflag Kuwaiti ships to deter attacks on vessels from Iran. The administration filed WPR letters for individual encounters with Iran and often said that it viewed the incident “as closed.” As Brian Finucane has explained, “Filing multiple reports for what was in fact a single, continuing conflict over the course of at least ten months, allowed the executive branch to stop and reset the 60-day clock for withdrawing from hostilities.”
The Obama administration did something similar in its initial uses of force against the Islamic State in 2014. The administration sent WPR letters to Congress for practically every round of strikes against the Islamic State over several months.
There have been many other WPR-avoiding tactics over the decades. Here is an important example from Kosovo, and others are collected here and here. But the “hostilities” interpretations sketched above are most relevant to Trump’s position.
The Trump Position
The conflict with Iran is the largest and most consequential congressionally unauthorized military activity since the Korean War. The United States has wrought enormous destruction in Iran. At least a dozen U.S. soldiers have died. Hundreds have been injured. The U.S. military presence in the region is enormous. The United States had “boots on the ground” in Iran, at least for the rescue operations.
The WPR does not itself authorize any of this. The legality of the war up to last Friday turns on one’s reading of Article II. The WPR became relevant last week because it might have required the war’s termination even assuming the war were constitutional.
If the April 7 ceasefire had been a peace agreement followed by military drawdowns, the WPR clock would not have run last Friday. Under just about any definition of “hostilities,” hostilities would not have been extant or imminent then.
One might interpret a genuine ceasefire in light of the two lines of hostilities precedents outlined above to conclude no WPR violation. First, one might think the ceasefire ends a discrete military endeavor that began on Feb. 28, and that if the ceasefire fails, the clock would start anew.
Second, one might conclude that even though the U.S. engaged in “hostilities” for a long time after Feb. 28, the ceasefire brought it below that legal threshold. And one might point out, for example, that on April 7 the military engagement with Iran, which nominally stopped, was much less intense than the military engagement in Libya deemed not to trigger the WPR deadline.
I imagine that the Trump lawyers have something like this combined “hostilities” theory in mind—assuming, that is, that they are worrying about it at all. While I think the precedents could be used in this way with certain ceasefires, I don’t think the argument works here.
The main reason is that the WPR clock continues to run, even if there is a complete pause in hostilities, if U.S. forces persist in a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances.” A ceasefire (which in some definitions means a cessation of hostilities) could in theory render involvement in hostilities both over and non-imminent. But the one on April 7 did not do so. Both hostilities and plausible imminent hostilities continued after April 7.
First, on April 13, the United States initiated a “blockade” on Iranian ports—an affirmative act of war that Iran claimed violated the ceasefire. On April 19, the U.S. Navy seized the Iranian ship Touska after the USS Spruance fired “several rounds from [its] 5-inch MK 45 Gun into Touska’s engine room” and disabled the ship. The U.S. has also boarded other Iranian ships. And Central Command said a few days ago that “45 commercial vessels have been directed to turn around or return to port to ensure compliance.” Each of these encounters are a situation where imminent hostilities are clearly indicated.
Second, Iran has continued since the ceasefire to use and threaten force in the region that could easily sweep in U.S. forces.
Third, the U.S. military footprint has grown significantly since the ceasefire.
Fourth, Trump announced yesterday that CENTCOM would guide ships through the Strait of Hormuz. The operation will involve “over 100 land and sea-based aircraft, multi-domain unmanned platforms and 15,000 service members in support of the project.” Iran claims that this action violates the ceasefire and threatened to target and attack ships in the strait of Hormuz. Trump said yesterday that “[i]f, in any way, this Humanitarian process is interfered with, that interference will, unfortunately, have to be dealt with forcefully.”
Fifth, yesterday was not the only time since the “ceasefire” that Trump has threatened military action. For example, on April 19 he said that “Iran decided to fire bullets yesterday in the Strait of Hormuz” and threatened, absent a peace deal, to “knock out every single Power Plant, and every single Bridge, in Iran.” He has engaged in other threateningly belligerent rhetoric since the ceasefire.
These and other facts lead me to conclude that U.S. troops at the time of the ceasefire and ever since remained at least in a “situation[] where imminent involvement in hostilities is clearly indicated by the circumstances.”
Loophole-scouring government lawyers could, of course, disagree, especially in light of Congress’s purposeful vagueness concerning “hostilities” that Koh mentioned.
They might, for example, distinguish “hostilities” before and after the April 7 ceasefire, and argue that the clock started anew sometime after April 7. But unlike past salami-slicing efforts, the administration has not set the predicate for this argument by filing discrete WPR letters.
Or they could argue that the post-April 7 situations do not portend imminent hostilities. This argument seems hard to square with the reality of continued and threatened hostilities and with the United States’ longstanding broad view of “imminence” for law of war purposes.
But it finds a bit of precedential support in the 1987 “reflagging” of Kuwaiti oil tankers and related U.S. military escort operations in the Persian Gulf. The Reagan administration apparently concluded that “hostilities” were not actual or imminent despite a large military and minesweeping presence, mine damage to U.S. ships, and hostilities in the region. But this “hostilities” interpretation came at the reporting stage, not the termination stage, and the U.S. military presence and threats of hostilities are larger now than in 1987.
These are some of the reasons why I conclude that the Trump position that hostilities ceased on April 7 is so large a legal stretch as to be wrong. It is hard to say whether the stretch is greater than some of the past stretches on which the position probably relies. But it certainly comes in a higher-stakes context.
The WPR’s Influence
Courts have never enforced the WPR and they aren’t going to start now. It is up to Congress to exercise its prerogatives—to cut off appropriations, to impose restrictions on the use of military force, and the like—to enforce the constraints in the WPR. It has done this in the past—for example, in curtailing Reagan’s military actions in Lebanon in 1983.
Presidents will continue in their opportunistic interpretations of the WPR until Congress imposes responsive pain. This is obviously hard to do. It is highly unlikely, absent a disaster much greater than we have seen to date, that today’s Congress could impose serious constraints related to Iran with large enough majorities to overcome a Trump veto.
But that doesn’t mean the WPR is irrelevant. It has had an impact at the margins in many past conflicts, and it is having an impact in the current one.
First, it is noteworthy that the administration that has often been cavalier about legal restrictions and that has made unprecedentedly broad Article II claims did not declare the 60-day clock in the WPR unconstitutional despite senior official statements to that effect. Presumably it declined to do so because it worried about the consequences of the firestorm that would have erupted in Congress. It is also remarkable that this administration has felt the need to communicate formally with Congress about its Iran activities, albeit with the usual “consistent with the WPR” disclaimer. The president was worried enough about the WPR to send Congress the letter on Friday.
Second, the WPR has been a focal point for debate about the legality and wisdom of the Iran war. Because of Section 7 of the WPR and 50 U.S.C. § 1546a, the Democrats in the Senate and House have been able to force numerous votes to restrict or end hostilities with Iran. These votes are increasingly difficult for some Republican members of Congress, given the unpopularity of the war. In the last Senate vote, for example, Sen. Susan Collins, who is up for re-election in November, switched to support the resolution to curtail the war.
Third, and relatedly, the WPR’s “sixty-day clock and special legislative procedures help ease congressional collective-action problems and make congressional opposition to ongoing military operations less politically risky,” as Matt Waxman has argued. He added that “legislative mechanisms themselves, such as debates and hearings, make it difficult to conceal or misrepresent congressional preferences about war and peace.”
These WPR-related consequences are not much, but they are not nothing. Politics are the only constraint on the president’s endeavors against Iran. But law can influence politics even when law is interpreted opportunistically by presidents and not reviewable in court. The WPR has facilitated political discussion and criticism, often in the language of illegality, and that has helped build political pressure—at least a bit.
I thank Tia Sewell for editorial assistance.