Both the House (H.Con.Res 83) and the Senate (S.J. Res 68) have now passed resolutions that say President Donald Trump has no authority to take the country to war against Iran, unless and until Congress affirmatively votes to authorize such a war. These resolutions are unprecedented in reclaiming congressional war powers and prohibiting a president from going to war without congressional authorization.
There has long been disagreement about the extent of the president’s authority to take the United States into war without congressional authorization, but in the words of former Department of Homeland Security Secretary Jeh Johnson: There have been mostly “’unilateralist presidencies and submissive legislatures.’ Essentially, Congress has abandoned this space, and the executive, in the name of national security real or perceived, has filled it.” And, as Jack Goldsmith wrote after Trump ordered the strike on Iranian Gen. Qassem Soleimani, “one person decides.”
In the case of Iran, Congress has now ended its silence. It has spoken clearly and unequivocally, rejecting executive branch claims of unilateral authority to take the country to war. The congressional resolutions each provide that the president may only undertake hostilities against Iran without prior congressional authorization in the limited circumstance where force is necessary to repel a sudden attack, where immediate action is necessary in self-defense without time to obtain authorization from Congress. This exception has long been recognized by defenders of both congressional and presidential war-making powers, including in the War Powers Resolution, even while the contours of the exception have not been explicitly defined in law.
The House and Senate also made clear that there is no existing congressional authorization for hostilities against Iran. They have rejected the always far-fetched claim that the 2002 AUMF that authorized the invasion of Iraq under then-President Saddam Hussein somehow authorized war with Iran. Just Security’s Ryan Goodman provides a more fulsome explanation here.
In passing these resolutions, the House and Senate are carrying out their constitutional responsibilities to interpret the allocation of powers between the branches, in this case to declare war. Each chamber has now formally set forth its understanding of constitutional powers regarding war with Iran: that the president needs a majority vote by both chambers before going to war against Iran, subject to the narrow exception where immediate action may be required for self-defense. Congress, as a co-equal branch, has a co-equal privilege and responsibility to judge the constitutional allocation of powers. In passing these resolutions, Congress is fulfilling that responsibility.
Accordingly, in order to take the country to war with Iran, the president must now come to Congress to make the case for doing so and obtain a majority of votes in each chamber authorizing war. The logical corollary is that if there are no such votes, presidential action making war against Iran would be illegal.
But much of the reporting on the passage of these resolutions has mistakenly characterized them as largely symbolic, citing the likelihood of a presidential veto. It is true that if the House passes the same text as the Senate, as a joint resolution, and sends it to the president, he will likely veto it and there are insufficient votes to override his veto. But any such veto would not render the resolutions merely symbolic. These resolutions are formal declarations by the Congress concerning the Constitution’s requirements for going to war against Iran. As House Speaker Nancy Pelosi said when the House passed its resolution in January: “This is a statement of the Congress of the United States, and I will not have that statement be diminished by whether the president will veto it or not.”
Congress is acting not to make laws, but to declare the allocation of war-making power set out in the Constitution. Congress reads the Constitution to mean that no statute is required to restrict the president’s authority, because the Constitution itself restricts it. The president has no authority absent affirmative congressional action.
To argue that a presidential veto would deprive these resolutions of their effect would turn the constitutional framework upside down. It would mean that the president would be free to go to war against Iran unless members of Congress could muster a two-thirds majority in both Houses to vote against him. Vetoing a resolution cannot have the effect of giving the president authority where the Congress has declared that the Constitution gives him none. (The analysis by Kristen Eichensehr on “What to Do with Vetoed Bills” supplies a useful perspective on this issue.)
In this analysis, I have deliberately referred to “war,” though the texts of the resolutions use the term “hostilities.” Its use triggered the application of the expedited procedures set forth in the War Powers Resolution. Those procedures allowed Sen. Tim Kaine (D-Va.) and the other sponsors of the Iran resolution to bring it to the Senate floor for a vote over the objection of Senate Majority Leader Mitch McConnell (R-Ky.).
While the term is not defined, and there is disagreement about what limited uses of force constitute hostilities, there is no doubt that the term includes the common understanding of war. Thus, the disagreement during the Senate floor debate about whether hostilities currently exist between the U.S. and Iran is irrelevant to the conclusion that in all events the resolutions constrain the president’s authority to initiate war with Iran. Likewise the administration’s argument that the resolution is grounded on a faulty premise, because the U.S. is not currently engaged in any use of force with Iran, simply does not address Congress’ command that the president not send troops into hostilities with Iran unless he secures a majority vote in both Houses.
Some have worried that the resolutions will not prevent another strike like the one that killed Soleimani. Whether such resolutions would apply to such a strike would depend on the surrounding factual circumstances. As recognized in the texts of the resolutions themselves, they are not intended to prohibit the president from engaging in singular strikes in the exceptional circumstances where immediate action is necessary to defend the country.
Immediately after the strike on Soleimani, it appeared that the Trump administration was relying upon this exception for its legal justification for carrying out the strike. More recently, the administration has provided a more formal and complete justification, whose claims and deficiencies are comprehensively analyzed by Just Security’s Ryan Goodman here. As Goodman points out, the administration does not justify the strike based on a claim that Soleimani posed an “imminent threat” justifying immediate action in self-defense without going to Congress. Instead, the justifications put forward by the administration – congressional authorization in the 2002 Iraq Authorization for Use of Military Force (AUMF) and expansive Article II powers — are at a minimum severely undercut, and, I would argue, made unavailable by passage of the Iran war powers resolutions.
While the Trump administration’s claim of congressional authorization for the Soleimani strike in the 2002 AUMF was always absurd, it is apparently quite important to the executive branch, as it has repeatedly made it. Right after the strike in January, the administration made it in the still largely classified report under the War Powers resolution. It included it again in the report issued in February, and it also cited it as an important reason for opposing the proposed repeal of that AUMF. No doubt the administration considered it politically safer for the president to claim congressional authorization, especially when the country immediately understood the serious threat of escalation and war created by the Soleimani strike. But Congress has now been clear that the 2002 AUMF does not provide authorization for such strikes.
Congress has also made clear that new congressional authorization will be required for any use of force in hostilities against Iran, unless the narrow exception for responding to imminent threats using Article II powers applies. If the president wants to carry out another strike, claiming that it does not rise to the level of hostilities and therefore is permissible under Article II, he will not be able to resolve that constitutional question simply by consulting the legal opinions of executive branch employees and ignoring the congressional resolutions.
Thus, these resolutions, even if vetoed by the president and discounted by the administration, will have consequential real world impact. Should the president seek to go to war against Iran, consideration of the effect of these resolutions will change the internal legal analysis in the administration. There will be no basis for the administration to claim congressional authorization, under the 2002 AUMF, or any other authority. It will have to resort to arguing unilateral authority under Article II and it will have to make that claim in the face of Congress’ declaration that such unilateral authority does not exist.
Without being able to claim the legal and political benefit of congressional authorization, the president will be faced with acceding to Congress’ demand that he obtain authorization for any war or with making the extreme claim that he alone can take the country to war. With Congress on record about the limits of Article II powers, it is no small matter for the President to go to war and argue that the decision to wage war belongs to him alone in the face of the bipartisan bicameral votes that the Constitution prohibits him from doing so. The political dynamics of the decision will be quite different than they were before passage of the resolutions.
The effect of this changed legal landscape on the limits of presidential war powers will also be reflected in the public debate on any use of force against Iran. Congress’ actions have rightfully ensured that if there is a next time, the question of whether the president is acting illegally and unconstitutionally if he orders the use of force, when there is no necessity to do so to defend against an imminent attack, will be on the table.
Congress now needs to ensure that the intention and effect of its resolutions are broadly understood and communicated. In speeches and hearings, lawmakers need to emphasize: There is bipartisan demand for congressional authorization for war with Iran; its determination that the 2002 AUMF does not provide such authorization; and the irrelevancy of any presidential veto. They need to explain the constitutional reasons why one individual must not have the power to take the country to war. And they must continue to make the case that should the president launch a war against Iran, he will be acting illegally in violation of the Constitution.
At the same time, whether Congress moves forward with joint passage of one text and presentment to the president for signature, it should make clear that this is an invitation for the president to join in this bipartisan, bicameral understanding of the Constitution. Rather than veto any resolution, the president should commit to come to Congress to make the case for using force against Iran if he thinks it necessary to do so.
These points should be made in congressional hearings, especially with administration officials from the Defense and State Departments, including the military officers and lawyers who will be confronted with the issue of the legality of any new proposal to use force against Iran.
This is the first time in at least a generation that Congress, as an institution, has been clear that it does not acquiesce to unilateral presidential action to take us into war. In passing these resolutions, Congress has restored the branches’ understanding of the constitutional balance: The president may only rely on Article II powers and Congress has now made clear how constrained those powers actually are.
Note re: “endless wars”
These Iran resolutions reclaiming congressional war powers also reflect growing congressional interest in efforts to end the “endless wars.” They are an instructive example about how to do so. The Iran measures, like the Yemen war measures passed last spring, focus on and provide direction about specific conflicts – Iran and the Saudi-led war in Yemen. They are not generalized statements about all the ongoing wars. As my colleague Ken Gude and I laid out last year, such conflict-specific measures are likely to be the best approach to ensure Congress’ participation in deciding how to end the current conflicts.
Image: Senate Minority Leader Chuck Schumer (D-N.Y.) speaks during a news conference following the bipartisan Senate vote on the War Powers Resolution on Iran with Senators Tammy Duckworth (D-Ill.), Tim Kaine (D-Va.), Tom Udall (D-N.M.) and Dick Durbin (D-Ill.) at the U.S. Capitol on February 13, 2020. Photo by Sarah Silbiger/Getty Images