How to Recover a Role for Congress and the Courts in Decisions to Wage War

President Donald Trump’s strike on Qassem Soleimani has set off a firestorm in Congress. The House yesterday passed a concurrent resolution, introduced by freshman Congresswoman Elissa Slotkin (D-Mich.), which registers Congress’ objection to the strike but would not be presented to the president for his signature and thus would not have the force of law. Two other resolutions are also in the mix. One is a joint resolution and the other a House resolution, both would have to not only go through the Republican-controlled Senate, but would be subject to a presidential veto—meaning that they are highly unlikely to make it into law. This has left many wondering if there’s anything at all that Congress can do to press back against the president’s unconstitutional military actions.

One idea that has been largely dismissed is going to court. But a recent set of cases on congressional standing opens up an opportunity to restore Congress’ recourse to the courts for serious war powers violations—if Congress is willing to seize it.

Let’s begin with some background: President Richard Nixon declared the 1973 War Powers Resolution unconstitutional, forcing Congress to enact it over his veto. Several presidents since have refused to acknowledge the constitutionality of the Resolution—and have reported to Congress “consistent with” the Resolution to avoiding a constitutional showdown without conceding the Resolution’s legitimacy. The Obama administration, however, recognized that “Congress has powers to regulate and terminate uses of force, and that the War Powers Resolution plays an important role in promoting inter-branch dialogue and deliberation on these critical matters.”

While Congress may have the power to regulate and terminate the use of force, it has struggled with how (or even whether) to enforce the Resolution in court. Members of Congress first sued the president for violating the Resolution in 1982 when 16 senators and 13 House representatives alleged that President Ronald Reagan’s decision to supply El Salvador with military aid usurped congressional war powers and violated the War Powers Resolution. Since that 1982 lawsuit, courts have consistently dismissed similar lawsuits on procedural grounds. As a result, some commentators concluded that while the Resolution “can serve as a lever for galvanizing political forces,” it is unlikely to be enforced in the courts.

In the last year, there have been renewed calls for Congress to reassert its war powers. Given the history of efforts to enforce the Resolution in court, it would not be surprising if reformers entirely ruled out enforcement in court as an option. But that would be a mistake. The District Court for the District of Columbia, in dismissing a congressional lawsuit against President George H.W. Bush, noted that “in principle, an injunction may issue at the request of Members of Congress to prevent the conduct of a war which is about to be carried on without congressional authorization.” The challenge has always been how to get standing to do so.

Congressional Standing

Congress, as an institution, has never filed suit alleging that the president has violated the Resolution. Instead, individual members of Congress have filed lawsuits that courts have dismissed on standing or political question grounds—or both. Yet Congress, as an institution, is far more likely to meet a court’s standing analysis than are individual congressional members. If Congress updates the War Powers Resolution, it could authorize the Speaker, the Senate Majority Leader, or a congressional committee to file suit on behalf of Congress. These lawsuits could enable Congress to challenge presidential action that injures congressional war powers. An institutional lawsuit is Congress’ most realistic avenue for litigating Resolution claims.

Case law makes clear why individual congressional members have faced difficulty suing the president. In 1997, the Supreme Court, in Raines v. Byrd, held that members of Congress have standing to sue only if they have a personal injury to a private right (for example, have been denied salary) or an institutional injury that amounts to vote nullification. To establish vote nullification, the member must show that the vote “ha[s] been overridden and virtually held for naught.” In 2011, 10 members of Congress sued in the District Court of DC to challenge the lawfulness of the U.S. participation in military operations against Libya. The court, applying the Raines test, denied them standing. The courts, thus, recognize a difference between when members of Congress file suit and when Congress as an institution files suit. Moreover, courts have consistently held that Congress may designate a committee or a member to sue on its behalf. In 2019, in Virginia House of Delegates v. Bethune-Hill, the Supreme Court reaffirmed this approach, holding that “individual members lack standing to assert the institutional interests of a legislature,” but leaving the door open to suits on behalf of the institution as a whole.

While this may leave a narrow opening for congressional suits, it does leave an opening: a resolution of both houses of Congress, and perhaps even a resolution of a single house, could authorize the Speaker, the Majority Leader of the Senate, or a congressional committee to sue to challenge an act by the executive branch that does concrete and particular injuries to their respective powers. A similar technique could be applied to address the political question doctrine. Indeed, the political question doctrine is easier to address via statute, because the doctrine is purely prudential. By empowering a congressional leader or committee to file suit on behalf of Congress, legislators may increase the likelihood that Congress will succeed in challenging the usurpation of its constitutional role in deciding whether and when to wage war. Moreover, a resolution granting this authority could be comprehensive—applying not just to a single instance but to all future violations of the Resolution. In doing so, it might force presidents to think twice before going to war without congressional support.

Military Service Member Standing

Military service members may also file suit against a president who violates the Resolution. Though few service members have brought such suits, the case law suggests that service members have standing when they face injury or death because of an unlawful order by the president to engage in hostilities.

A couple of Vietnam-era cases established the possibility of such suits. In 1970, in Berk v. Laird, the Second Circuit found that an Army private, who had been ordered to Vietnam, had standing to challenge the legality of the Vietnam war as “the complaint can be construed as putting in controversy his future earning capacity, which serious injury or even death might diminish by an amount exceeding $10,000.” Similarly, in 1971, in Massachusetts v. Laird, the First Circuit found that soldiers serving in Southeast Asia had standing to challenge the Vietnam War as “[t]hey allege[d] that their forced service in an undeclared war is a deprivation of liberty in violation of the due process clause of the Fifth Amendment.”

More recently, in Smith v. Obama, the District Court for the District of Columbia dismissed a suit by Army Captain Nathan Smith, who sought a declaration that President Barack Obama’s authorization of Operation Inherent Resolve, the U.S. military name for the intervention against the Islamic State in Iraq and Syria, was unlawful, on both standing and political question grounds. The Smith court was unpersuaded by Smith’s claim that he was injured in having to decide whether to follow the orders of Obama or to follow his oath of office. However, the Smith court did note that it did “not question as a general matter the apparent assumption of certain courts that service members may be appropriate parties to challenge the legality of military action that they claim endangers them.” It further explained that:

“The Court draws no conclusions as to the standing of a service member ordered into a war he or she believes is unlawful where the soldier’s claim is based on his own constitutional rights, individual liberties, physical or emotional well-being, or other injuries. This case simply does not present those questions.”

The bottom line is that a service member who files suit alleging that the president is unlawfully risking the service member’s life has a reasonable prospect of withstanding a court’s standing analysis. The scope of this doctrine is likely limited, however, to service members that are actually deployed to a theater or conflict where there is a genuine risk of injury or death.

Congress, in updating the Resolution, could assist service member litigants by requiring that all lawsuits that allege a violation of the Resolution be heard in accordance with 28 U.S.C. § 2284. Section 2284 empowers Congress to require that certain cases be heard by a three-judge district court panel. One advantage of this panel system is that any appeal of a three-judge panel “bypasses the court of appeals and is lodged directly with the Supreme Court, which at least ostensibly must decide the case on the merits.” Increasing the speed with which service member-litigants can receive a final and binding resolution to their claims might encourage service members to file suit when the president violates the Resolution. In addition, an updated Resolution could discourage recourse to the political question doctrine by the courts in such suits.

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 Over the course of the last several decades, U.S. presidents have asserted increasingly unilateral authority to wage war, too often disregarding both the Constitution and the Resolution in the process. As a result, the Resolution has arguably become the “the Swiss cheese War Powers Resolution.” In addition, presidential administrations have used creative methods to comply with the letter, but not the spirit, of the Resolution. Broad reform to the Resolution will be necessary to allow Congress to reassert its constitutional role in decisions to wage war, as will a renewed commitment by Congress to play its constitutionally mandated role. Making it possible for the Resolution to be enforced in court is only a part of the solution, but it is nonetheless an important part. By amending the Resolution to encourage lawsuits from service members and from Congress itself, Congress could give itself a tool to empower it to better ensure that the constitutionally mandated separation of powers over decisions to go to war are not just observed in the breach.

One may wonder whether a Congress that has been complicit in its own loss of authority can be counted on to act. In short, why would Congress be expected to take this step when it has repeatedly stood by as its authority has been methodically stripped away? The answer is that there is a renewed interest in war powers, perhaps inspired by the Trump administration’s open disdain for Congress and renewed unease about the unfettered authority to wage war in the hands of a single man. But whether Congress has the will to act is ultimately up to Congress. It can reassert its authority but that is no guarantee that it will.

Image: People demonstrate against United States entering a war with Iran on the East Front of the US Capitol on January 9. Photo by Sarah Silbiger/Getty Images

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Geoffrey Block

J.D. student at Yale Law School, class of 2021; Commissioned as a Surface Warfare Officer