Seeking to head off an escalated confrontation between the United States and Iran, the House passed a resolution yesterday that would “terminate” hostilities between the two countries unless Congress declared war or force was needed to defend against an “imminent” attack against the US or its forces. The resolution may be largely moot now that the Trump Administration and the Iranians both seem to be standing down, but the resolution does raise interesting constitutional questions.
The Constitution specifically grants Congress the ability to declare war but makes the president the commander-in-chief of the armed forces. Many, such as Rep. Justin Amash, read these passages of the Constitution to understand that the president cannot commit troops offensively without congressional authorization. The problem is that the Constitution does not say this explicitly.
A second problem is that presidents have been sending troops on offensive missions without congressional authorization for about as long the United States has been a country. Max Boot has fallen out of favor with Republicans since he became a “Never Trumper” but his excellent book, “The Savage Wars of Peace,” is the definitive history of America’s undeclared wars. One of the earliest examples is Thomas Jefferson’s war against the Barbary pirates all the way back in 1801.
Today, the water is further muddied by the 1973 War Powers Resolution. Passed in the closing days of the Vietnam War, the WPR, which became law over President Nixon’s veto, requires that the president “consult” with Congress before deploying US forces into combat “in every possible instance.” In any case, the president must report such deployments to the Speaker of the House and the president pro tempore of the Senate within 48 hours. The report must include the circumstances, the constitutional and legislative authority which led to the deployment, and the estimated scope and duration of the employment. The WPR also places a limit of 60 days on the use of military forces without a declaration of war or a congressional authorization.
This does not constitute a blank check for short-term military action, however. The WPR stipulates that, in the absence of a declaration of war or statutory authorization, the president only has the authority to commit troops if there is “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Presidents of both parties have often considered the WPR to be an unconstitutional limitation of their constitutional authority but no court has ever ruled on the issue. Presidents have largely abided by the law’s requirements for consultation and notification with a few notable exceptions. President Clinton exceeded the 60-day limit with his 1999 bombing campaign in Kosovo but ultimately received a congressional authorization. In 2011, President Obama never received authorization for his bombing campaign in Libya but claimed that his actions were legal because US involvement had been decreased to a supporting role under NATO’s leadership.
In the case of the War on Terror, the situation gets muddier still. Congress did not declare war on either Afghanistan or Iraq but did pass authorizations to use military force (AUMFs) in both cases. While people who claimed that the wars were illegal because Congress did not declare war are wrong, the matter is complicated by the fact that current interventions are still being carried out on the basis of these nearly-20-year-old authorizations with no expiration date.
There is debate among conservatives as to whether this is kosher. Rep. Amash says “no,” particularly when it comes to new hostilities in Iran.
On the other hand, David French argues that the 2002 AUMF covered the initial attack against Soleimani since it took place in Iraq where US troops were operating under congressional authorization. What's more, Soleimani was a combatant who was responsible for the deaths of hundreds of US troopers. However, retaliating in Iran would require new congressional authorization in French’s view.
That authorization to use force against Iran, as well as the loophole for short deployments, is what House Democrats want to deny President Trump. The new resolution, which will go to the Senate where it will die a slow and painful death, is even more restrictive than the 1973 WPR. The bill, which runs just longer than four pages, expressly prohibits the president from striking Iran without permission from Congress unless it is to “defend against an imminent armed attack.”
Even though the resolution will not become law, it does have bipartisan support. Three House Republicans, Matt Gaetz (Fla.), Thomas Massie (Ky.), and Francis Rooney (Fla.), voted in favor of passage, as did former Republican Justin Amash. In the Senate, Republicans Mike Lee (Utah) and Rand Paul (Ky.) have expressed support for the measure.
Even though the resolution will ultimately fail, President Trump should not take that as a green light to strike Iran. First, the president’s January 5 tweet, which he claims serves as notice to Congress, does not meet the requirements of the WPR. Second, after almost two decades of fighting in the Middle East, voters oppose a new conflict with Iran by large margins. There is very little public support for escalation so an AUMF against Iran would be difficult to pass.
The bottom line here is that the Democrat resolution won’t pass, but President Trump doesn’t really have the authority or public support to launch a pre-emptive war against Iran anyway. With both sides de-escalating, the crisis appears to have passed, at least for the moment.
Rather than wasting time on restating the president’s authority with respect to Iran, Congress might be more productive revisiting the old AUMFs that have been on the books for almost two decades. These open-ended resolutions defer too much congressional authority to the executive branch and ought to be updated to address current threats. Congress should also add an expiration date.
Originally published on The Resurgent