The war powers resolution taken up by the Senate this past week — along with the angst over it — is part of a show.
The war powers resolution taken up by the Senate this past week — along with the angst over it — is part of a show.
A s if our “Much Ado About Nothing” file were not already bursting, the Senate really outdid itself this week . . . before skipping out of town for a nice vacation, hoping nobody notices how the World’s Greatest Deliberative Body comports itself in wartime.
It all started on Tuesday when the Senate narrowly approved a resolution under the War Powers Act, purporting to direct President Trump to either withdraw from the Iran war or seek congressional authorization to continue using military force. Four Republicans — Rand Paul (Ky.), Lisa Murkowski (Alaska), Susan Collins (Maine), and Bill Cassidy (La.) — joined 46 Senate Democrats to pass the resolution by a 50–48 margin. One Democrat, John Fetterman (Pa.), voted against the resolution. Two Republicans who have voted against the resolution on previous Democratic attempts to pass it were not present — Mitch McConnell (Ky.), the chamber’s 84-year-old former GOP leader who has recently been hospitalized, and Dave McCormick (Pa.).
Three weeks ago, the House approved the same resolution by a 215–208 margin, when four Republicans broke with the predominantly Trump-allied majority. Republican Speaker Mike Johnson (La.) had gone so far as to call an early recess in May, desperate to prevent a vote once it was clear Democrats would prevail — which they did as soon as the House was back in session.
It’s just a mini-mutiny, fueled by the unpopularity of the war the president started without congressional authorization. Still, it stuck in Trump’s craw. After all, he has so dominated the Republican Party that it should be called the Trump Party (that would make a lot more sense than etching his name on the Kennedy Center). Predictably, Wednesday’s GOP Senate lunch, at which the president was the guest of honor, devolved into a whining session with Trump lighting into Cassidy and the other renegades as “losers.” When cooler heads finally prevailed, cowed Republican leaders agreed to take another vote to appease the president. Cassidy got a White House briefing and decided to support Trump; Paul, who’d led the sparse Republican opposition to the war, nevertheless agreed to vote “present” (reasoning that the war was over anyway and he didn’t want to undercut Trump in peace negotiations); and McCormick this time attended the vote and sided with the president. The result: The resolution was defeated 50–47.
Or was it? See, technically, and contrary to the president’s post-vote crowing, the resolution defeated on Thursday was a different piece of legislation from the resolution that had prevailed on Tuesday. The former does not rescind the latter, which still stands. In reality, what Senate Republicans gave Trump on Wednesday was a political talking point, not a meaningful legislative win.
In the end, though, it is just a lot of angsty debate over nothing.
Yes, the House and Senate have now passed a war powers resolution, despite Wednesday’s subsequent Senate bait and switch. Yet that resolution has no chance of being enacted into law. If presented to Trump, he will veto it, and the two-thirds supermajorities that would be needed for a veto override are not there.
In the abstract, it is unclear whether a war powers resolution should need presidential approval or enough congressional support to override a veto. The Constitution grants the power to declare war to Congress, not the president. If presidential approval were necessary, that would defeat the Framers’ purpose in vesting the war power in the legislature.
For present purposes, there is no need to delve into the deep debate over what exactly the power to declare war entails and whether it is meant to prevent the president from waging war without congressional authorization. (While I respectfully disagree, at least in part, my friend John Yoo makes a formidable case against overstating Congress’s authority.) Even if we assume for argument’s sake that it was meant to have that effect, the current version of the War Powers Act, enacted in 1973 over President Nixon’s veto, requires presentment to the president.
Whether it necessarily should require such presentment is an interesting question.
The War Powers Act was originally enacted with a legislative veto provision. Under its terms, if the president unilaterally deployed the armed forces to conduct warfare, the two houses of Congress, by enacting a concurrent resolution (no presidential signature required), could require the president to withdraw U.S. forces in the absence of a congressional war authorization.
That changed after the Supreme Court decided INS v. Chadha in 1983. As I’ve previously explained (see, e.g., here), Chadha held that the legislative veto provision at issue in that case was unconstitutional. To my mind, this should not have been taken to invalidate all legislative veto provisions (there were then about 200 in federal law). The provision in Chadha was easily distinguishable from other legislative veto provisions, particularly the one in the War Powers Act: It purported to authorize a veto by a single house of Congress; and it related to a comparatively obscure statutory matter (namely, whether Congress could invalidate a decision by the executive branch to allow a deportable alien to remain in the U.S.), not to a core constitutional power that the Framers had quite intentionally vested in Congress rather than the president.
Nevertheless, in reaction to Chadha, Congress amended the War Powers Act to make the withdrawal-of-forces mechanism a joint resolution. Unlike a concurrent resolution, a joint resolution requires either presidential approval or a veto override to become binding law. Obviously, a president who has deployed forces without congressional authorization would veto a joint resolution ending that deployment; and the nigh impossibility of massing two-thirds of both houses in favor of overriding that veto renders the War Powers Act illusory as a source of congressional war power.
Could Congress enact a binding concurrent war powers resolution, wholly apart from the War Powers Act currently on the books, requiring the president to end warfare and withdraw forces? It’s an interesting question but perhaps an unanswerable one.
A dispute between the political branches on a quintessentially political issue, whether the nation should be at war, is not one on which the apolitical judicial branch would intervene. Practically speaking, the modern Congress has been content (derelict, in my view) to let the president make decisions about war and either carp or cheer from the sidelines, rather than be accountable in exercising one of its most consequential responsibilities. Moreover, the president is the commander in chief with authority over the armed forces; if he were to ignore a concurrent war powers resolution — say, in the good faith belief that Chadha is the controlling precedent and, therefore, that his approval is needed — then Congress would have to take other measures to end the war. Such measures could range from cutting off funding (something that could imperil our forces in harm’s way, would thus be politically risky for lawmakers, and would in any event require presidential approval or a veto override) to impeachment (even more politically fraught).
Hence it is doubtful that a war would be ended legislatively. Instead, the political branches will theatrically spar with each other. Regarding Iran, President Trump, who has at times contended that the war he started is not a war, precisely to circumvent Congress’s war power, now says that the conflict, whatever we might call it, is over . . . notwithstanding that (a) there are still major military assets including 50,000 personnel in the war zone, and (b) he continues to threaten renewed blockades and bombing if Iran remains intransigent in negotiations. Congressional opponents of the war persist in pushing for resolutions to end it, aware that the exercise is performative but confident that harping on the unpopular war further sags the president’s poor approval ratings — putting Trump’s Republican allies in a tough spot as November’s midterm elections approach.
The resolution approved by the Senate this week is part of this kabuki: noteworthy but not very substantial. And the subsequent Senate disapproval of a war powers resolution, after the president’s tantrum, is noteworthy only for being even less substantial.