“Under the founders’ view, the president could engage in military action without congressional authorization only when necessary to repel sudden attack," Liza Goitein, co-director of the Brennan Center for Justice’s Liberty & National Security Program, said in an e-mail. Over time, however, that constitutional limitation has been ignored as “the executive branch has construed the president’s constitutional authority to take military action far more broadly than the founders did.”
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She said Congress has “sat by passively” while presidents have launched unauthorized military operations and the courts have “sat on the sidelines, treating the matter as a question of politics rather than one of law.”
But Democrats in Congress are now preparing resolutions in both the House and the Senate to try to stop the Republican president from escalating hostilities in Iran.
The Senate legislation, sponsored by Democratic US senators Tim Kaine and Richard Durbin, emphasizes that Congress has the sole power to declare war, and that any hostilities with Iran must be explicitly authorized by a congressional declaration of war or authorization for use of military force. It also calls for the president to cease hostilities with Iran within 30 days unless the actions are authorized by Congress.
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The Senate must not let this President march into another war in the Middle East without debate and authorization from Congress. Yesterday I joined @timkaine to introduce a resolution preventing Pres. Trump from starting a war with Iran all on his own. https://t.co/f5ejxqdsT4
— Senator Dick Durbin (@SenatorDurbin) January 4, 2020
House Speaker Nancy Pelosi said Sunday the House would act this week on a similar measure, sponsored by US Representative Elissa Slotkin.
Kaine’s resolution calls for “removal of United States Armed Forces from hostilities against the Islamic Republic of Iran that have not been authorized by Congress.”
It cites the 1973 War Powers Resolution law, in which the Congress tried to reassert control over war decisions that had been eroded during the Cold War.
What will happen next?
There’s reason to doubt that such a resolution will succeed. Even if it were to get a majority vote and pass the Democratic-dominated House and the Republican-dominated Senate, it seems inevitable that Trump would veto it, The New York Times reported.
Overriding the veto would require a two-thirds majority in both chambers at a time when many Republicans are defiantly loyal to Trump, who has been impeached by the House for abuse of power and obstruction of Congress and is headed toward a trial in the Senate.
The Associated Press reported that the resolutions were “largely symbolic."
Even if such a resolution were to get through Congress and pass by an override, Trump might claim a constitutional right to defy the resolution. Attorney General William Barr has long argued for a maximalist interpretation of executive power, and once told President George H.W. Bush that he could launch the Persian Gulf War of 1991 without congressional permission and even if lawmakers voted against it, The Times reported.
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“The Justice Department would probably take the position that the resolution infringed on the president’s constitutional authority, and so the president might very well ignore it,” Goitein told Vox.
One thing the resolutions will accomplish is to put lawmakers, both Republican and Democratic, on the record on where they stand on a war with Iran.
“If nothing else, if it doesn’t have the force of law to stop the president, it does provide an opportunity to have a bunch of Republicans forced to vote on the president’s decision and to rally political pressure against it,” Scott Anderson of the Brookings Institution told Vox.
Others in Congress are taking a separate tack to try to curb any military action in Iran.
US Senator Bernie Sanders and US Representative Ro Khanna have announced a bill to bar any funding for offensive military force in or against Iran without prior congressional authorization.
The same measure was approved by the House of Representatives last year but was later removed from the National Defense Authorization Act adopted by Congress in December.
Some experts say such a measure could have more impact than the resolutions coming up this week. “Congress’ appropriations power is one of the most potent tools to restrict presidential action,” Bridgeman and Egan wrote.
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While resolutions may fail to stop the president, they wrote, “Cutting off funds for the use of military force against Iran, in the absence of congressional authorization or an armed attack by Iran on the United States or its armed forces, would be a more effective tool to curtail the ability of the executive branch to draw the United States into a war that Congress has not authorized.”
Goitein said, “Congress still has the clear authority to terminate military actions begun by the president. Congress could pass a law that would prohibit or deny funding for further military actions. To pass such a law, however, Congress would almost certainly need to muster a veto-proof supermajority. The obstacle faced by Speaker Pelosi and others attempting to prevent further military action against Iran at this stage isn’t legal; it’s political.”
Material from Globe wire services was used in this report.
Martin finucane can be reached at martin.finucane@globe.com
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