A Brief Explainer on the War Powers Resolution

The Regime has launched a war on Iran with no authorization from Congress and no clear justification under the United Nations Charter or international law. In response, Democrats and a few Republicans in Congress are advancing a resolution under a statute called the War Powers Act of 1973 in an attempt to end or at least place limits on this illegal action. Let’s lay out what that means.

Here are the main takeaways:

• The War Powers Act makes it clear this war is illegal. The law sets forth the three grounds on which a President can introduce U.S. armed forces into hostilities. Two involve authorization by Congress and one involves responding to an attack on the United States. None is satisfied here.

• At one point the Regime tried to float an assertion that the War Powers Act affirmatively authorizes a President to wage war for 60 or 90 days at his sole discretion before he must ask Congress for authorization. That is flat wrong, the opposite of what the statute says, and a lie.

• When a President deploys armed forces into hostilities in a foreign theater, Congress can pass a concurrent resolution requiring that “such forces shall be removed by the President.” The minority party can force a vote on this kind of War Powers Resolution.

• The War Powers Act also imposes serious notification requirements on a President, demanding that Congress be kept apprised of uses of force and receive reports on strict timetables.

The War Powers Act of 1973

In 1973, Congress enacted a law over the veto of President Richard Nixon called the War Powers Act. (The law is also known as the War Powers Resolution and that usage is more common but I will use War Powers Act to avoid confusion with the concurrent resolution that Congress can enact pursuant to that law, which I discuss below.) The War Powers Act came as a response to grave concerns in Congress that the Executive Branch was claiming too much authority to unilaterally deploy U.S. military forces abroad, concerns that came to a head when Richard Nixon expanded the theater of war in the Vietnam War by conducting a secret bombing campaign in Cambodia without seeking authorization or even informing Congress. In response, the Act effectuated a major shift in legal authority in the use of military force. I describe the law’s major components in more detail below. First, however, a pragmatic observation.

The War Powers Act is the law. It is a major expression of congressional authority enacted over a presidential veto. But it is not enforceable through a lawsuit and it does not impose criminal penalties if it is violated. Rather, the War Powers Act is about defining the boundaries on a President’s authority. Its primary goal is to impose political, popular and hortatory constraints. The War Powers Act brands a President as a lawbreaker if he engages in unauthorized or prohibited uses of military force, laying the foundation for political repercussions including an impeachment inquiry and framing for the public a clear message about the lawless nature of a military campaign. The law is not an invitation to federal judges to stop an illegal war; they cannot. It is an assertion of congressional authority that seeks to strengthen a political enforcement framework.

The War Powers Act has several components. First, it imposes constraints on the authority of a President to use military force. Second, it sets forth a series of requirements for a President to give Congress notification and keep it informed when using military force abroad. Third, it creates a process by which Congress can seek to terminate the use of military force. Let’s take each in turn.

Presidential Authority and the Use of Force

Under Article II of the Constitution a President is the commander in chief of U.S. armed forces (“the Army and Navy of the United States” as the Constitution puts it), meaning he is the senior command authority for the military. Under Article I of the Constitution, however, Congress has power over military policy including when the United States goes to war and how its military forces are governed, regulated and outfitted. To give some sense for the footprint each branch of government has over military affairs in the text of the Constitution: the provisions setting forth Congress’s control over military policy occupy six of the eighteen clauses in Section VIII of Article I where Congress’s primary powers are set forth; the assignment to the President of the commander in chief role occupies a single clause.

In its first provision, the War Powers Act recites these constitutional authorities and then establishes the following policy for the United States of America concerning the use of military force by a President:

“(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

The Act thus clarifies that a President can only lawfully introduce U.S. forces into hostilities where Congress has declared war, enacted a specific authorization for the use of force, or when the U.S. is attacked.

A subsequent provision of the Act sets a more specific limitation. When a President launches an attack with U.S. armed forces, he or she is required to notify Congress within two days and provide a report offering a rationale. The Regime has now complied with that requirement. Once that notification is either sent or required to be sent, it starts a 60 to 90-day clock on the military action. After that period runs, the statute orders the President to terminate the military action unless Congress has provided statutory authorization or extended the deadline. Here is the provision, edited a bit for readability:

“(b) Termination of use of United States Armed Forces; exceptions; extension period

“Within sixty calendar days after a report is submitted or is required to be submitted pursuant to [the notification provision], whichever is earlier, the President shall terminate any use of United States Armed Forces … unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”

Here is what all this means for the war the Regime has just started with Iran:

• Congress has not declared war.

• Congress has not enacted a specific statutory authorization for the use of force in this conflict. In the past, Presidents have relied on the 2001 Authorization for the Use of Military Force enacted after 9/11 to authorize broad-ranging military responses to those attacks. That law is still on the books but the Regime has not attempted to rely on it.

• This war was not a response to an attack by Iran.

That means launching this war was illegal, full stop. The Regime has made some vague suggestions that a President has inherent power under Article II of the Constitution to start a war like this one. That is false. What is more:

• Now that this unauthorized war is underway, the War Powers Act orders that the President “shall terminate any use of United States Armed Forces” within sixty days.

• The Regime can extend that period to ninety days but only for reasons of “unavoidable military necessity respecting the safety of United States Armed Forces.” They presumably will do that, whether or not it is justified, if Congress has taken no other action by that time.

• The command in the War Powers Act that the President “terminate any use of United States Armed Forces” is a separate and independent restriction. Even if the Regime tries to claim that this war was somehow justified on “self defense” grounds, the Act orders them to terminate the use of the armed forces unless Congress provides affirmative statutory authorization.

Presidents sometimes push on the interpretation of the War Powers Act to try to circumvent its requirements. For example, in 2011 President Obama took a highly contested position that he could order a military intervention in Libya to protect civilians in danger of being slaughtered by the forces of Muammar Gaddafi without first seeking statutory authorization from Congress because (he argued) the scope of the force deployment did not rise to the level of “hostilities” under the War Powers Act. President Obama later acknowledged that choosing not to seek congressional authorization was perhaps the worst mistake of his presidency.

The current Regime has attempted to float a convoluted explanation that launching this war was “offensively being proactively defensive” (or something) because of an anticipated attack on Iran by Israel. We shall see whether they try to make a case to Congress that this war was justified under the provision of the War Powers Act involving responding to an attack, but frankly that is difficult to imagine. And again, even if they do, the 60- to 90-day clock would still be running.

Concurrent Congressional Resolution

In addition to all the above, the War Powers Act gives Congress the power to order the removal of U.S. armed forces from a foreign theater through a concurrent resolution, often described as a War Powers Resolution. When the President is deploying the military without a declaration of war or express statutory authorization, Congress can act immediately to direct him to stop. Section 1544 of the Act provides:

(c) Concurrent resolution for removal by President of United States Armed Forces

Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

The statute designates resolutions under this provision as special and privileged, meaning they cannot get bottled up in committee or killed by the Speaker of the House or the Senate Majority Leader. When a concurrent resolution under the Act is proposed in a timely fashion, the Armed Services Committees have a fixed time of no more than 24 days to consider and debate its contents and then the Act requires that the proposed resolution “shall become the pending business of the House in question … and shall be voted on within three calendar days thereafter” unless Congress affirmatively votes otherwise.

A War Powers Resolution is legislation. If both Houses of Congress enact the concurrent resolution it still has to go to the President for signature before it takes effect and the President can choose to veto it. Congress would then need to override that veto by a 2/3 vote in both Houses.

You might ask yourself why in Heaven’s name the War Powers Act gives a President an opportunity to veto a resolution aimed at constraining his illegal use of the military. As originally drafted, it did not. The original version of the law empowered Congress to pass a concurrent resolution ordering the President to withdraw an unauthorized deployment of the armed forces with no opportunity for a veto. Why did that change?

The answer relates to the separation of powers. The original concurrent resolution provision raised questions under Article I, Section 7 of the Constitution, which requires every “bill” to “be presented to the President of the United States” for signature or veto. The War Powers Act itself satisfied that requirement, of course. The question was whether Congress could enact legislation that reserves to itself this kind of power to restrain the executive without independently satisfying the requirement of “presentment.” For a long time, including when the War Powers Act was enacted, that question remained unsettled. The Court provided an answer in a major decision in 1983 called INS v. Chadha in which it held that Congress cannot perform any legislative act without satisfying the bicameralism and presentment requirements of Article I, even when it assigns itself that authority in a validly enacted law. The Act was therefore amended to require a War Powers Resolution to satisfy the requirements of normal legislation.

Here is what all this means right now:

• Unless Congress affirmatively authorizes this illegal war with Iran, the Regime needs to withdraw its forces by about June 1.

• At any time between now and then, Congress can pass a concurrent resolution ordering the Regime to withdraw its forces. That resolution can include a specific timetable and other conditions or requirements.

• Mr. T***p would need to sign that resolution for it to become law. If he vetoed it, 2/3 of each House of Congress would have to enact it over his veto. If they could not, the resolution would have no legal force.

• The political impact of a concurrent resolution ordering the withdrawal of U.S. forces from Iran would be immense, even if it met with a veto that Congress could not override.

• Without a declaration of war or affirmative statutory authorization by Congress this illegal war needs to end with the withdrawal of U.S. forces by about June 1. That deadline applies even without a War Powers Resolution by Congress.

Summing Up

A lawless President at the head of a lawless Executive Branch is an emergency for the United States and the World. When Congress abdicates its duty to restrain a lawless President the danger multiplies. Nowhere is that danger more acute than in the use of military force.

In one of the most profound and consequential assertions of its institutional authority in the history of the United States, Congress enacted the War Powers Act of 1973 over a presidential veto and set durable, strict, mandatory limitations on a President’s use of the Armed Forces without congressional authorization. This Regime’s unauthorized and illegal war with Iran may be the most important test of that monumental statute since its enactment.

Since the start of this Regime thirteen and a half months ago, Congress has mostly allowed the federal courts to shoulder the burden of holding the Executive in check. The Legislative Branch cannot shirk its responsibility here. Only Congress has the power to enforce the War Powers Act. Only a political repudiation can end an illegal war.