What the new congressional opposition to the Iran War means

U.S. Capitol building U.S. Capitol (cc) Daniel Mennerich.

On June 23, the Senate joined the House in passing a bipartisan resolution directing the president to withdraw U.S. armed forces from the hostilities in Iran unless legislators specifically authorize the fighting. The House had passed the same resolution on June 3.

The resolution is mostly symbolic, but important nonetheless. For one thing, it clearly shows that Congress opposes the Iran war. And while hardly guaranteed, it might serve as the catalyst for additional action reining in presidential unilateralism, in the face of President Trump’s continued threats (as recently as June 22) to “hit Iran very hard again” and even to kidnap or kill Iranian negotiators meeting with U.S. officials in Switzerland if Iran displeased him.

A closer look at this resolution

Some legislative geekery is required to explain why the resolution is (almost certainly) non-binding. In short, it takes the form of a “concurrent resolution” – a piece of text that both chambers of Congress agree to, but which does not go to the president for signature. That is, it is not part of the classic How a Bill Becomes a Law sequence. As Scott Anderson explains for Lawfare, concurrent resolutions “are generally used to exercise Congress’s various nonlegislative authorities, such as its ability to act or make statements as an institution.” Budget resolutions are also concurrent blueprints that shape subsequent legislative action. Resolutions that are signed into law – or vetoed – by the president are known as “joint resolutions” instead.

However (twist #1): when the War Powers Resolution (WPR) – a joint resolution! – became law in 1973, it specified in section 5(c) that Congress could force the president to withdraw troops from hostilities via a concurrent resolution. The idea was straightforward: Given that Congress has the power to declare war, its ability to end a purely presidential war should not require a supermajority of each chamber to be effective.

However (twist #2): a decade later, the Supreme Court ruled in INS v Chadha that the so-called legislative veto was unconstitutional. That is, actions by Congress that fell short of actual lawmaking (such as making an administrative action contingent on approval by some subset of legislators) could not bind presidential behavior. This was a great gift to presidential power, as law professor Josh Chafetz has detailed: The authority Congress had delegated to the president on condition that Congress could control its use had suddenly lost most of its controls.

The Chadha case was not about the WPR. But since a concurrent resolution does not become law, most legal experts have concluded that the decision still means the process in section 5(c) cannot legally force presidents to act. It’s worth noting, though (twist #2 1/2?), that not everyone believes this. No such case has been litigated. But the new resolution might provide a vehicle for doing just that.

Will the courts weigh in on the Iran war?

More broadly, courts have generally ducked making rulings regarding the war powers and foreign policy, regarding these as “political questions” best left to the two elected branches. But most often those bringing suit have been individual members of Congress claiming to speak for their institution as a whole, a premise courts tended to reject even before the Supreme Court held in 1997’s Raines v Byrd that such members could not argue they had been personally harmed in such cases. This latest resolution provides an action by the entirety of Congress opposing the president’s action.

Further, as the war powers analysis linked below detail, presidents have made very broad claims about their ability to use force whenever they (presidents) think the conflict is short of war “in a Constitutional sense.” But even the Justice Department’s Office of Legal Counsel noted in 2011 (with regard to the bombing of Libya) that “this independent authority of the President… exists at least insofar as Congress has not specifically restricted it…” The resolution certainly makes it harder for the president’s lawyers to argue that Congress has acquiescenced, through inaction, to whatever the president wants to do.

Will Congress stick to its, er, guns?

And now there is another vehicle for legislators to express their discontent: the administration’s $75 billion supplemental budget request for war funding. That could be a twofer of sorts – allowing Congress to awaken its slumbering power of the purse while adding to the long history of using appropriations as leverage over foreign policymaking. Even as President Trump attacked the “Republican Losers” and “Dumocrats” who voted for the resolution, Sen. Bill Cassidy (R-La.) said he “ma[d]e no apologies for standing up to the president.” Hours later, though, Cassidy and others switched their votes to oppose a different joint resolution version of the war powers measure – perhaps hoping to assuage Trump, who might not have read up on the distinction.

In short, the vote this week in Congress to end U.S. military operations against Iran makes an important statement against the war powers overreach of the Trump administration. But whether this resolution proves to be a practical impediment to presidential war-making might depend on the courts – and even more so on whether legislators wind up strengthening their constitutional responsibilities through regular exercise.

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