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The Hill
17-07-2025
- Politics
- The Hill
Is the War Powers Resolution an obsolete necessity?
When I recently asked whose power is the war power, it was not intended to be a trick question. But for the Founders in framing the Constitution, it was a tricky issue to tackle. They concluded the two principal branches should share the war power. Congress was designated as the branch to declare war and make rules for the regulation of the armed forces. The president would be the commander-in-chief when called into the actual service of the United States. The Framers did not want either branch to monopolize war making and envisioned them checking each other against the excessive use of force abroad. The late 20th century complicated that vision with the onset of the Cold War and multilateral treaties like NATO committing us to coming to the assistance of our treaty allies. With the growth of terrorist organizations around the world, our military footprint became larger and challenged Congress on how best to deploy our troops to respond effectively. In the midst of the divisive Vietnam War, Congress sought to modernize and strengthen its check on the imperial presidency by enacting the War Powers Resolution of 1973 over President Richard Nixon's veto. The resolution directed presidents to terminate any military hostilities after 60 days in the absence of a specific congressional authorization to declare war. Congress could terminate a commitment sooner by passing a concurrent resolution, not requiring a presidential signature. It could also extend a military action by enacting a joint resolution known as an authorization for the use of military force. Presidents ever since Nixon have declared the law an unconstitutional intrusion on the president's authority as commander-in-chief. Meanwhile, debates have raged as to how to make the War Powers Resolution more broadly acceptable and workable. One of those efforts was a privately funded National War Powers Commission founded in 2007 by the Miller Center of Public Affairs at the University of Virginia, in partnership with law schools or institutes at Rice, Stanford and William and Mary. The 12-member panel, chaired by former Secretaries of State James A. Baker III and Warren Christopher met seven times over 13 months and heard from over 40 witnesses. In its final report, unveiled in July 2008, it recommended abolishing the War Powers Resolution and replacing it with the War Powers Consultation Act of 2009, and creating in Congress a 20-member joint committee on congressional consultation. The House Speaker and Senate majority leader would alternate as chairs. It would be further comprised of the House and Senate minority leaders, and the chairs and ranking members of key committees: Appropriations, Armed Services, Foreign Affairs and Foreign Relations, and Intelligence. The joint committee would be charged with reviewing, in closed session, a classified report from the president on any proposed commitment of troops to hostilities for more than a week, and, after closed deliberations, recommending to the two chambers either for or against the requested military commitment to hostilities. Under their proposal, if within 30 days after the conflict begins a concurrent resolution approving the commitment is rejected by either house, a joint resolution opposing the president's action is privileged. If passed, the usual two-thirds vote of both houses would be required to override the president's anticipated veto. Sen. Tim Kaine (D-Va.) introduced the commission's proposed War Powers Consultation Act in 2014 along with co-sponsors Sens. John McCain (R-Ariz.) and Angus King (I-Maine). The bill received no further action or co-sponsors. It lacked appeal on the Hill because it was obviously tilted toward the president. That should not be surprising since six of the 12 commission members were former executive branch officials and only three were former members of Congress. The other three were academics. As we have relearned recently, members are reluctant to go against presidents of their own party, and minority party opposition, while expected, seldom has legs. Presidents since Nixon have uniformly ignored or denounced the War Powers Resolution except for its periodic reporting requirements to Congress. Those reports, if taken more seriously by both branches, can be the building blocks for deeper consultation, deliberations and debates in Congress and the broader American public over how to end U.S. involvement in hostilities. The War Powers Resolution may be all but obsolete, but it can still provide some basis for hope in the future bicameral cooperation and agreements. Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of, 'Congress and the People: Deliberative Democracy on Trial' (2000), and, 'Changing Cultures in Congress: From Fair Play to Power Plays' (2018).
The Hill
10-07-2025
- Politics
- The Hill
Whose power is the war power?
June was dominated in official Washington by news of all the political gyrations, frustrations and manipulations in President Trump's massive reconciliation bill, which covered everything from budget cuts and tax cuts to border security and defense spending increases. Trump's 'One Big Beautiful Bill Act,' as it was officially titled, was only displaced briefly as the top story by his June 21 use of B-2 Spirit bombers to drop a dozen big bad bunker-busting bombs on three Iranian nuclear enrichment facilities. The response from Congress was tepid at best, mainly because the bombing was followed by a cease-fire between Iran and Israel and Trump's assurance that the bombing had destroyed Iran's ability to develop nuclear weapons for decades to come. Any further U.S. military actions would not be necessary. Nevertheless, there was some concern on Capitol Hill that the president was going back on his campaign promises not to involve the U.S. in any more 'forever wars' in the Middle East, or anywhere else. That concern was reflected in public opinion polls showing overwhelming American opposition to being drawn-in militarily to the Israeli-Iranian conflict. During Trump's elaborate June 14 celebration in Washington of the U.S. Army's 250th anniversary, the display of military hardware on parade evoked reactions of both pride and trepidation. Large counter protests were held across the country that same day under the rubric, 'No More Kings.' Members of Congress from both parties shared private concerns that Congress should play some role in at least overseeing any potential expansion of hostilities given the first branch's constitutional role to declare war. Whenever the U.S. is either attacked by a foreign power or initiates a preemptive strike against a foreign power, Congress usually reacts, at least rhetorically, to protect its prerogatives. At the very least, Congress expects to be consulted, either before or after an executive military move, and asked to authorize any continuing action. All this back-and-forth raises the question as to whose power is the war power. The historical record of constitutional debates shows that the founders intentionally meant that answer to remain ambiguous so the two branches could sort it out, depending on the situation. Out of the tug-and-pull between the two branches, the American people would be alerted to the core issues involved and weigh-in with their elected representatives. That has not stopped Congress from trying to better define and delineate the lines of responsibility. The last declaration of war was for World War II. In 1973, during the tumult of the Vietnam War, Congress enacted the War Powers Resolution with, certain conditions and guard rails for American military involvement abroad. The measure was enacted over President Richard Nixon's veto. He argued the act put unconstitutional constraints on his role as commander-in-chief. Under the War Powers Resolution, absent a direct attack or a declaration of war by Congress, the president's commitment of troops to hostilities must terminate after 60 days. Congress can end the U.S. role sooner by passing a concurrent resolution (which does not require the president's approval). Or, Congress can extend the continuation of American involvement by enacting a joint resolution authorizing the use of military force. In the Iran case last month, Sen. Tim Kaine (D-Va.) and Reps. Thomas Massie (R-Ky.) and Ro Khanna (D-Calif.) introduced concurrent resolutions in their respective chambers prohibiting the president from going to war with Iran. Kaine switched to a joint resolution at the last minute using a process under the International Security Assistance and Arms Export Control Act to bar military action. On June 27, the Senate voted 47-53 to reject Kaine's motion to discharge the bill from the Foreign Relations Committee. In the House, Massie said he would not call-up his concurrent resolution to bar war with Iran so long as the cease fire with Israel held. Trump, while not seeking a formal authorization for the use of military force against Iran, either before or after the bombing, did send letters to the House and Senate leaders on June 23 explaining the reasons for his actions, in compliance with the War Powers Resolution's requirement 'to keep Congress fully informed.' Nevertheless, as some have pointed out, every action by a president without Congress's involvement is a unique case and thereby sets a new precedent and justification for future unilateral presidential military actions. Every new situation in which Congress refrains from asserting its war power role simply puts a new arrow in the president's quiver. Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of, 'Congress and the People: Deliberative Democracy on Trial' (2001), and, 'Changing Cultures in Congress: From Fair Play to Power Plays' (2018).
UPI
02-07-2025
- Politics
- UPI
President's war powers rest on 'uneasy balance' with Congress
1 of 5 | President Donald Trump is joined by his national security team in the Situation Room of the White House in Washington, D.C., on June 21, as U.S. bombers executed strikes on the Islamic Republic of Iran's nuclear infrastructure. Photo via The White House/UPI | License Photo July 2 (UPI) -- President Donald Trump's decision to order the bombings of three nuclear sites in Iran has heightened concern about the United States entering another war in the Middle East. The president did not seek congressional approval before signing off on the bombing, though it has not been uncommon for presidents to make such decisions unilaterally. Democrats in the U.S. Senate sought to change that, introducing a bill to limit the president's war powers last week but it failed. The attempt to curb the president's war powers underlines what John Bellinger, former legal adviser to the State Department under President George W. Bush, told UPI is an uneasy balance between Congress and the president. "Over more than 200 years there's been an uneasy balance of responsibilities between the president and the Congress," Bellinger said. "Over the past few decades, Congress has ceded more and more of its own war powers to the president and acquiesced in the succession of presidents, both Republican and Democratic, using force and deploying the U.S. military in a variety of situations without a [congressional] approval." The framers of the U.S. Constitution divided the powers related to engaging in war between the president and Congress. The authority to declare war expressly lies with Congress, as does the authority to raise and support armies, regulate the military and direct funds toward related operations. The president's role under the Constitution remains a source of debate. In practice, presidents, as commanders-in-chief, have been understood to have the authority to use force, including the deployment of troops and military capabilities, in response to threats. When that use of force is a long-term engagement in conflict, such as a major invasion, the president is expected to consult with Congress, Bellinger said. In 1973, Congress passed the War Powers Resolution, aiming to clarify, even limit the president's authority to enter the United States into armed conflict without the approval of Congress. One of the chief features of the War Powers Resolution that has been generally complied with is that it requires the president to report to Congress within 48 hours of ordering military action. The report must include the reasons for the action and their expected duration. "It's not clear whether the president complied with the consultation requirements which require a president in all possible circumstances to consult with Congress before the use of force," Bellinger said. "There seems to be a dispute about how much consultation the president did. It appears that he gave notice to some Republican leaders. It's not clear whether he gave notice to Democratic leaders but it certainly doesn't appear that they were extended consultations so the president could get the views of elected members of Congress." Trump sent a letter to House Speaker Mike Johnson, R-La., on June 23, notifying him of the strike on three Iranian nuclear sites. This was two days after the strike took place. Trump said the strike was taken to "advance vital United States national interests and in collective self-defense of our ally, Israel, by eliminating Iran's nuclear program." He notes that the strike was limited in scope and purpose and Iranian troops and military forces were not targeted. Trump cited the War Powers Resolution, adding that he sent this letter to comply with the resolution. Launching the strike in an effort to defend Israel brings international law into relevancy. According to the international laws of war under the U.N. Charter, uses of force like this are permitted under narrow criteria including self defense or collective self defense. The use of force must also be proportional and necessary. Israel's launch of a preemptive strike against Iran further muddies the water in regards to whether the United States was justified to strike on Israel's behalf. "This is why probably most international lawyers will believe that the action is not permissible under international law because, one, the United States itself did not face an imminent armed attack from Iran," Bellinger explained. "Two, there was not evidence that Israel faced an imminent armed attack from Iran." A separate argument can be made that Israel and Iran have long been engaged in a "simmering war," according to Bellinger. "There is an argument that there was a pre-existing state of war between Iran and Israel and that Israel really was not starting anything," Bellinger said. "It was simply continuing a simmering war with Iran and that the United States was acting collectively with Israel. Knowing the views of other countries and other international lawyers, that argument will be viewed as a stretch." Harold Hongju Koh, a legal adviser in the State Department under the Obama administration, told UPI that the executive branch puts the decisions to authorize military force under a test to determine the president's authority to do so. Walter Dellinger, assistant attorney general under the administration of President Bill Clinton, outlined a legal framework for understanding the president's war powers in 1994, referred to as the nature, duration and interest test. This three-pronged test would be used by the executive branch to determine whether a president can lawfully use military force without congressional approval. Central to the test is differentiating a short-term or one-off military action, such as a missile strike, from a prolonged engagement that would constitute a war or invasion. The Trump administration's explanation of the attack on Iran notes that it was limited in scope and purpose, making the argument that Dellinger's test was satisfied. Koh said whether the test was satisfied or not, the strike against Iran was a clear violation of international law. Koh is a law professor at Yale where he has taught international law for 41 years. "It's illegal under international law because there's no legitimate self defense rationale," Koh said. "Nobody believes there was an imminent strike by Iran. Tulsi Gabbard and others said there wasn't a nuclear weapon capacity. So it's an act of preemptive self defense which is not permitted in international law." Koh argues in favor of congressional action to limit the war powers of the president as a matter of good governance. "The question here is why is Trump allowed to use force against Iran and its proxies," Koh said. "That's something that's obviously an important foreign policy decision. Congress ought to set its views about what is appropriate or at a minimum authorize him to do certain things for a limited period. If they want to authorize him to make sure that Iran doesn't have a nuclear weapon they can do so. They can also require him to do diplomacy first. The longer term solution to this problem is not going to be a military strike on Iran every six months to two years, whenever they rebuild a nuclear capacity." Bellinger was in the White House on Sept. 11, when the Bush administration prepared its response to the attacks in New York and Washington. Discussions over Bush's war powers were central to this response and ultimately led to Bellinger and others drafting the Authorization for Use of Military Force of 2001 resolution. The resolution, approved by Congress, gave Bush the authority to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11." The language also allowed the president to use force to prevent future acts of international terrorism "by such nations, organizations or persons. In 2002, another resolution was passed to authorize the use of force in Iraq, resulting in the war in Iraq. According to Bellinger, Presidents Barack Obama, Trump and Joe Biden have used these resolutions to support their authority to use military force against countries beyond the scope of what was originally intended. "I could not have envisioned how 25 years later it would still be on the books and still be being cited by successive presidents for military operations in a variety of different countries on the theory that we're using force against the individuals, nations or groups that committed the 9/11 attacks," Bellinger said. "This is really, I think, what makes members of Congress reluctant to agree to a new authorization as they think, 'Look what happened to the 2001 and 2002 authorizations.'" Efforts to repeal these authorizations have been introduced by the 2001 resolution, which is the broader of the two, remains.
Yahoo
30-06-2025
- Politics
- Yahoo
Congress Won't Act on the Iran Strikes. That Doesn't Make Them Legal.
President Donald Trump has insisted that the sites in Iran targeted by American airstrikes last week have been 'obliterated,' decimating its nuclear program—a claim that has been backed up by key administration officials despite an initial intelligence report finding that the damage was more moderate. But alongside the question of whether significant damage has been done to Iran's nuclear ambitions, there is another thorny issue that lawmakers must now address: the legality of Trump's decision to authorize the strikes in the first place. 'It's not just a matter of statutory interpretation, it's a matter of [the] Constitution requiring that Congress be the one to play a critical role in making a decision and using force,' said Oona Hathaway, professor of international law at Yale Law School. 'For the president to make that decision unilaterally, without going to the Security Council, without going to Congress, and putting U.S. troops and allies at risk is really extraordinary and clearly unlawful.' The president's power to use military force is constrained by the U.S. Constitution, the United Nations Charter, and the War Powers Resolution of 1973. According to Article 1 of the Constitution, only Congress has the authority to declare war, although it has not done so since World War II. The War Powers Resolution was enacted in response to the Vietnam War as an attempt to counter presidents' approval of military action without the consent of Congress. It was pushed through over President Richard Nixon's veto. The law requires that a president consult with Congress before engaging military forces, and report within 48 hours why the action was taken, under what authority, and 'the estimated scope and duration of the hostilities or involvement.' It also says a president must terminate the use of military force within 60 days if he has not sought approval from Congress. Despite its intention to ensure a conflict such as the Vietnam War never occurred without congressional consent again, the War Powers Resolution has often been ignored by the White House. For decades, presidents have pushed the limits of their power to engage in conflicts, while Congress has continued to take the back seat in enforcing its constitutional authority to declare war. Several presidents have taken military action without following the letter of the War Powers Resolution, including President Bill Clinton ordering airstrikes in Kosovo and President Barack Obama authorizing intervention in Libya. But Michael Glennon, professor of constitutional and international law at the Fletcher School of Law and Diplomacy at Tufts University, argued Trump's actions were unique in that 'the risks entailed in this particular action are orders of magnitude greater than any of the supposed recent precedents.' He cited the threat of retaliation to the tens of thousands of U.S. troops posted around the Middle East, as well as 'stoking long-term regional animosities' and 'degrading the American reputation in diplomatic dealings with other countries.' 'In none of these recent cases was the context the same—the context being the exposure of the United States to a level of risk and cost that has not occurred before,' Glennon said. Trump's actions do follow a pattern of presidential engagement in conflict being followed by congressional dithering. Over several decades, presidents have learned that there will be little consequence for ignoring the War Powers Resolution. Hathaway said that cases challenging a president's actions do not typically go to court due to lack of legal standing. 'I don't think that that should lead us to think that there is no relevant law here, that this is a law-free zone where the president can do whatever he wants because he knows no one can actually enforce the rules,' said Hathaway. 'If the fact that there may not be consequences means that there's no law, then we've really got a problem on our hands.' Any pushback to unilateral presidential action may come from public disapproval of extended conflict rather than direct congressional action. A new Quinnipiac poll shows that the public is largely reacting to Trump's strikes in Iran with disapproval, although Republicans remain on board with the president's actions. 'Ultimately, Congress has not, in a significant way, constrained presidents from acting in these cases,' said Jordan Tama, professor in the Department of Foreign Policy and Global Security at American University's School of International Service. 'The members of Congress who have been most concerned about violations of the War Powers Resolution, or presidential actions that are not authorized by Congress … have not been able to muster the majority you need in Congress to pass new binding legislation that explicitly prohibits the president from pursuing military action.' Trump's actions in Iran have been met with some pushback from lawmakers, particularly after a scheduled briefing by administration officials for lawmakers was postponed this week. Axios further reported that the White House is limiting the sharing of classified information with Congress. Democratic Senator Tim Kaine is leading a resolution that would require Trump to seek congressional approval before engaging in further military hostilities in Iran, with an added amendment intended to alleviate concerns that it might hamper American support for Israel's activities in the region. Although the Senate is set to vote on the measure on Friday evening, it's unclear whether it would garner any Republican support in the upper chamber. Moreover, GOP Representative Thomas Massie, the Republican co-sponsor of a parallel measure in the House, said that a vote on his bipartisan resolution might be made moot if the ceasefire between Iran and Israel holds. Even if either of these measures makes it to the floor, however, it's unclear how much bipartisan support they would receive. Indeed, there is little political will to repudiate the president, and even if there was, lawmakers would need to marshal a veto-proof majority to take concrete action. Overturning a presidential veto would require support from two-thirds of members, which is unlikely in a Republican-majority Congress. In 2019, Congress approved a measure that would have pulled American support for Saudi Arabia's conflict in Yemen, but that resolution was vetoed by Trump. This puts Congress in a 'terrible fix,' said Hathaway: Rather than the president going to Congress to authorize military action, Congress must take the initiative to repudiate it. 'We end up with this learned helplessness in the sense that Congress chooses to stop trying, because what's the point?' said Hathaway. 'The president has learned that [he] can use military force without seeking authorities from Congress without consequence.' Aside from a seeming unwillingness to counter smaller-scale military engagements by presidents, Congress has similarly struggled to repeal or update authorizations for the use of military force in Iraq and Afghanistan approved ahead of the Gulf War and after the 9/11 terrorist attacks. The 2001 authorization, which applied to perpetrators of the 9/11 attacks, has been treated by presidents as an umbrella approval to strike at other organizations affiliated with Al Qaeda. Efforts to overturn or narrow these authorizations have floundered in recent years, even decades after they were approved. Countering the president invites risk for members of Congress. For Republicans, resistance to the president's aims will only court Trump's retaliation. More generally, however, lawmakers take the view that authorizing the commencement of military engagements—or ordering them to cease—comes with unintended political consequences. Voting in favor of the 2003 authorization of military force in Iraq became a major political albatross for Democratic primary candidates in the 2008 presidential election. That said, repealing such an authorization invites blowback, as well, if, for example, the move to do away with such a law was followed by a terrorist attack on American soil, or U.S. interests getting threatened abroad. The status quo has a latent appeal to lawmakers, who get to offset the political risk of military intervention while maintaining the ability to criticize it—or take credit. 'Casting a dangerous vote on an issue of war and peace is a perilous political act, and they would prefer to avoid that, because they would prefer their careers be extended and not hindered,' said Glennon.
NBC News
29-06-2025
- Politics
- NBC News
Sen. Chris Murphy says it's 'clear' Trump's strikes on Iran are 'illegal'
WASHINGTON — Sen. Chris Murphy, D-Conn., said that President Donald Trump's military strikes on Iranian nuclear facilities were 'illegal' but dodged when asked if he should be impeached for ordering the attacks without congressional approval. "That's a decision the House makes. That's not a decision that Senate makes. But it is clear that this is illegal," Murphy said when asked whether he agreed with Rep. Alexandria Ocasio-Cortez's comments that Trump's strikes were grounds for impeachment. The House votes on whether to impeach a president, while the Senate votes on conviction. A president can launch military attacks if there is a "declaration of war," Congressional authorization or "a national emergency created by an attack upon the United States, its territories or possessions, its armed forces," according to the War Powers Resolution. Trump's strikes, some Democrats argue, breach the resolution. The Senate last week voted against a resolution that would have required Trump to seek congressional approval before authorizing any additional military action against Iran. The vote was almost entirely along party lines, with Sen. Rand Paul, R-Ky., siding with Democrats. Asked a second time by moderator Kristen Welker whether the New York Democrat was on the right track by suggesting impeachment, Murphy said that Trump's conduct during his second term has been worse than his first. "Again, that's a decision the House makes. But I will say, I mean, if you compare his conduct in this administration to the conduct that he got impeached for in the first administration, his conduct in this administration is much worse, much more lawless and much more unconstitutional," Murphy said. Trump was impeached twice during his first term, though he was never convicted by the Senate. Democrats are in the minority in both the House and Senate, making any impeachment efforts unlikely to move forward. Murphy has called Trump's decision to strike Iran illegal because the president did not seek congressional authorization. "I've been briefed on the intelligence — there is no evidence Iran posed an imminent threat to the United States. That makes this attack illegal," Murphy said in a statement in the hours after the attack. He added that "only Congress can declare preemptive war." Trump has repeatedly insisted that the U.S. attacks "obliterated" Iran's nuclear facilities, while U.S. officials have also said that it would take weeks to fully understand the impact of the strikes. An initial Defense Intelligence Agency assessment, which was leaked, said that the bombing may have only set back Iran's nuclear program by several months. NBC News has reported that the DIA labeled its assessment"low confidence," and several U.S. officials have said that intelligence indicated that the nuclear sites were heavily damaged or destroyed. Murphy said on Sunday that Iran's nuclear capability "just was not obliterated." He said if he were the commander-in-chief, he would not have authorized the strikes. "No, I would not have authorized strikes literally at the moment that we were sitting down with the Iranians trying to come to a peaceful settlement," Murphy said. "The only way that you are going to stop Iran from getting a nuclear weapon is an agreement." The director general of the International Atomic Energy Agency said in a CBS News interview released Sunday that Iran could resume enrichment within months. "The capacities they have are there," said Rafael Mariano Grossi, according to a transcript released ahead of the interview airing. "They can have, you know, in a matter of months, I would say, a few cascades of centrifuges spinning and producing enriched uranium, or less than that. But as I said, frankly speaking, one cannot claim that everything has disappeared and there is nothing there."
