It’s time to amend the War Powers Resolution
The House of Representatives voted last week to prevent President Trump from engaging in additional hostilities against Iran without congressional approval. A similar measure is pending in the Senate and has support from at least two Republican senators.
Both measures are in response to a drone strike launched by the Trump Administration in early January that killed Iranian Maj. Gen. Qasem Soleimani. It did so without consulting Congress in advance, violating the 46-year-old War Powers Resolution intended to give Congress greater say of when American forces are sent into conflict.
Two days after the strike, the Trump Administration submitted a classified report, which House Speaker Nancy Pelosi stated “raises more questions than it answers.” A subsequent in-person briefing further enraged some lawmakers, including Sen. Mike Lee (R-Utah), who called it “the worst briefing [he’s] seen — at least on a military issue — in [his] nine years” in Congress.
Congressional leaders are now seeking more information about the strike and what is next for the United States in the Middle East. Iran’s recent retaliation — launching missiles against two military bases housing American troops in Iraq — has only fueled congressional anxiety.
Congress is right to ask questions. The Constitution provides war powers to both Congress and the president: Article I gives Congress the power to “declare war” and “raise and support armies,” while Article II broadly designates the president as commander in chief. These authorities are vague, and how they apply in practice continues to evolve and be debated. Nevertheless, it is indisputable that Congress has a constitutional voice in foreign affairs and should use every tool, including the War Powers Resolution, to make sure its voice is heard.
The Soleimani strike is not the first time Congress has questioned a president’s military decision-making. After acquiescing to the president for decades, the cost and controversy of the Vietnam War spurred Congress to re-examine its wartime role. In 1973, Congress passed the War Powers Resolution, which requires the president to consult with Congress when armed forces are sent “into hostilities or into situations where imminent involvement in hostilities is clearly indicated.” And unless Congress approves further action, the president must “terminate any use of the … Armed Forces” after 60 (or sometimes 90) days.
Perhaps unsurprisingly, President Richard Nixon vetoed the War Powers Resolution. He argued the legislation was unconstitutional and restricted the president from acting “decisively and convincingly in times of international crisis.” But Congress overrode Nixon’s veto, and the War Powers Resolution became law in November 1973.
Presidents since then have similarly argued that the War Powers Resolution is unconstitutional and have chipped away at the law’s effectiveness. One method has been to abuse the law’s vagueness. In 2011, for example, the Obama administration concluded that the U.S. military’s involvement in Libya — which included a four-day air campaign that saw the destruction of 100 Libyan targets — did not count as “hostilities,” allowing it to sidestep the law’s weighty requirements. State Department Legal Adviser Harold Koh later testified to Congress that “hostilities” under the Resolution “is an ambiguous term of art.”
Other times, presidents have ignored the Resolution’s mandate to consult with Congress before engaging in hostilities. In 1980, the Carter administration did not inform Congress before sending the military to (unsuccessfully) rescue hostages in Iran, claiming the mission was instead an inapplicable “humanitarian rescue attempt.” The mandate’s caveat — to consult Congress “in every possible instance” — has also provided presidents legal cover. In 1989, the Bush administration did not consult Congress before providing U.S. aircraft to assist the Filipino government during an attempted coup. A Bush national security adviser later wrote that due to the “rapidly evolving situation,” consulting Congress “was simply not an option.”
The Trump administration has used both of these strategies to sidestep the War Powers Resolution. In 2018, the administration cited Obama-era arguments to claim that launching airstrikes against Syrian chemical weapons facilities without congressional approval “was consistent” with the actions by past presidents. The recent strike in Baghdad that killed Soleimani was done without consulting congressional leaders, even though the government had reportedly spent several days tracking and considering whether to strike the Iranian military leader.
These examples demonstrate the many weaknesses of the War Powers Resolution. Today, presidents are largely able to rely on past practice to ignore many of the Resolution’s conditions and dare Congress to intervene, a difficult feat given the president’s power to veto legislation and his status as commander in chief. As a result, any actual reforms should strive to be simple and overwhelmingly bipartisan.
Based on past presidential practice, two reforms spring to mind: defining “hostilities” under the War Powers Resolution and specifying whom the president should consult (and how) before hostilities commence. The former, as advocated by Yale law professor Oona Hathaway, would codify a commonsense view of “hostilities,” which would end the increasingly cynical arguments that airstrikes and raids do not apply under the Resolution. The latter change could provide better direction on how Congress is to be consulted. It could mandate who is consulted (such as a specified group of majority and minority leadership and committee heads), when they are to be consulted, and limit the exceptions that presidents may use to avoid consulting Congress in the first place.
Whether they like it or not, both political branches share war powers. If Congress is unable to use the existing War Powers Resolution to help oversee and participate in the direction and engagement of the armed forces, it should replace the statute. The alternative is an abandonment of its given constitutional role.