Armed Conflict Congress Executive Branch Foreign Relations & International Law

The Long Road Ahead for the Congressional Resolutions on Iran

Scott R. Anderson, Margaret Taylor
Thursday, January 9, 2020, 10:04 AM

The War Powers Resolution provides expedited procedures for a very specific type of legislation. This limits how Congress can use them in regard to Iran.

Rep. Elissa Slotkin (center), then a congressional candidate, speaks at an event hosted by Third Way in July 2018, with her future congressional colleague Abigail Spanberger to her right. (Flickr/Adam Schultz, CC BY-NC-ND 2.0)

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Congress is set to push back on President Trump’s recent use of force against Iran. But will its actions have any effect?

In a Jan. 5 letter, Speaker of the House of Representatives Nancy Pelosi described the recent drone strike that killed Iranian military commander Qassem Soleimani as “a provocative and disproportionate military airstrike targeting high-level Iranian military officials [that has] endangered our servicemembers, diplomats and others by risking a serious escalation of tensions with Iran[.]” In response, she indicated that the House intended to “introduce and vote on a War Powers Resolution to limit the President’s military actions regarding Iran,” modeled on a measure introduced by Sen. Tim Kaine in the Senate. On Jan. 8, Democratic Rep. Elissa Slotkin introduced the House’s version of the resolution. Both Pelosi and members of the Senate, meanwhile, indicated that additional legislative proposals may be forthcoming.

Kaine’s original proposal is a joint resolution—a measure with the force of law, which would be presented to the president for signature and a possible veto. If enacted, it would “direct[] the President to remove United States Armed Forces from hostilities against the Islamic Republic of Iran or any part of its government or military” within 30 days “unless explicitly authorized by a declaration of war or specific authorization for use of military force[,]” though it excludes efforts to “defend [the United States] from imminent attack.” On its face, Slotkin’s resolution is similar, in that it would direct the president to “terminate the use of the United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress has “declared war or enacted specific statutory authorization” or doing so is “necessary and appropriate to defend against an imminent armed attack upon the United States, its territories or possessions, or its Armed Forces, consistent with the requirement of the War Powers Resolution.”

Yet the Slotkin resolution introduces a twist: It is a concurrent resolution, a type of measure that need only be approved by a majority in both chambers, but is not presented to the president for signature and does not carry the independent force of law. As such, it would fall under a separate set of provisions and related expedited procedures under the War Powers Resolution—provisions widely believed to be unconstitutional following the Supreme Court’s 1983 decision in INS v. Chadha.

The procedural and legal implications of the differences between a joint resolution and a concurrent resolution are important, as we’ll describe below. But both Kaine’s and Slotkin’s resolutions have a crucial limitation, built in by the nature of the War Powers Resolution itself: As the text of Kaine’s resolution suggests, the War Powers Resolution provides a mechanism for Congress to object to uses of force by the president without a declaration of war or statutory authorization (or in the case of a national emergency created by an attack on U.S. territory or forces, which the administration has not argued is the case). In defending its actions against Iran, the administration has pointed to the 2002 Authorization for the Use of Military Force (AUMF) as well as the president’s constitutional powers under Article II. So even if the resolutions successfully clear the many hurdles in their path, the executive branch would still be able to argue that its conduct is authorized under the 2002 AUMF. Additional operational language in a joint resolution that narrows the 2002 AUMF in relevant ways could make this argument more difficult for the executive but would come at the cost of making its path through Congress thornier.

It’s also not clear what exactly either resolution would require the Trump administration to do. The language used in both resolutions—and the War Powers Resolution provisions more generally—is distinctly territorial and backward looking, requiring that the president “remove [U.S. troops] from hostilities against the Islamic Republic of Iran or any part of its government or military” or something similar. Presumably, this does not mean removing U.S. soldiers from Iraq, almost all of whom are engaged in activities that have no bearing on Iran. But does it require a realignment of U.S. soldiers in the region, who are there to respond to a threat from Iran? Or even prohibit future engagements in hostilities with Iran, after “removal” is accomplished? In addition, the exceptions for imminent attacks in both the Kaine and Slotkin resolutions—but particularly the Kaine resolution—could prove to be a significant loophole, as this is precisely what the Trump administration at one point asserted it was doing with the Soleimani strike (though it has since appeared to walk back that argument).

Ultimately, these are all interpretive issues that the executive branch and Congress—and the courts, if they become involved—will have to resolve. The executive branch is likely to play the dominant role in these interpretive exercises and may be able to shape the outcome in a way that lets it preserve its preferred policy priorities.

Regardless, because of the difficulty in enacting any sort of resolution and the uncertain legal effects it will have, the real effect of these resolutions is likely to be one of policy, not law—a conclusion that might sound familiar to those who have followed the congressional debate over the Yemen conflict over the past several years. Through those debates, several members of Congress have successfully used similar sets of expedited procedures under the War Powers Resolution to force Congress to debate and hold votes on the Trump administration’s controversial support for the Saudi-led intervention in Yemen. While this process has not yet resulted in new legislation—the most recent effort was approved by a majority in both chambers but vetoed by Trump—it has successfully helped to build political pressure on the Trump administration to moderate some of its policies toward Yemen. The sponsors of the Iran joint resolutions most likely hope to accomplish a similar result in regard to U.S. policy toward Iran. But given differences in the politics surrounding the United States’s conflict with Iran, there is no guarantee the political outcome will be the same in this case.

Procedural Obstacles

The War Powers Resolution sets out separate procedures for concurrent and joint resolutions directing the withdrawal of U.S. forces from hostilities. As originally written, the legislation allowed Congress to enact a concurrent resolution through expedited procedures—now codified at 50 U.S.C. § 1546—that was not subject to presidential veto and obligated the president to comply. This effectively allowed a simple majority in Congress to countermand a presidential decision to deploy U.S. forces into hostilities absent congressional authorization, in what is commonly called a “legislative veto.” In its 1983 decision in Chadha, however, the Supreme Court held that a similar provision in a separate statute was unconstitutional on the grounds that it avoided the constitutional obligations to submit legislation to the president for signature and a possible veto. While Chadha did not directly address the War Powers Resolution, it triggered concerns that the existing withdrawal procedures were constitutionally suspect. Congress responded by enacting an additional set of expedited procedures—now codified at 50 U.S.C. § 1546a—that allowed for the same outcome using joint resolutions, which are subject to presidential presentment and thus do not raise Chadha concerns.

Section 1546a provides for expedited procedures in the Senate only, allowing a qualifying joint resolution to proceed through the Senate’s legislative process after a fixed period of debate with only simple majority support, thereby protecting these measures from filibusters and other obstructions. This guarantees that the sponsors of such measures will be able to force at least one round of debate and a Senate-wide vote—outcomes that Senate Majority Leader Mitch McConnell would otherwise most likely be able to prevent under normal Senate procedures. And while Section 1546a does not provide any comparable expedited procedures for the House, it’s unlikely that the resolution would have trouble making it through the Democratic-controlled chamber.

Section 1546, meanwhile, sets out procedures for concurrent resolutions in both chambers. These procedures are intended to achieve the same basic effect as the Section 1546a procedures for joint resolutions. But the Section 1546 procedures are structured differently, indicating only that each chamber “shall” take certain steps—instead of the much more automatic approach of making certain motions in order automatically as with the more recently authored Section 1546a procedures. Some experts have posited that this may render the Section 1546 procedures less effective, as there is no obvious remedy if a congressional body were to disobey. Once again, this is unlikely to be an issue in the House due to Democratic control. But it may complicate efforts to use these procedures to enact a matching concurrent resolution in the Senate.

Given this and the Chadha concerns, it’s unclear why the House has chosen to proceed with a concurrent resolution instead of a joint resolution. Contrary to Pelosi’s Jan. 5 letter, Slotkin’s concurrent resolution cannot be a companion for Kaine’s joint resolution in the Senate; either one or the other will have to be passed through both chambers to be enacted. While there are no expedited procedures in the House for joint resolutions directing withdrawal, these are unlikely to be necessary due to Democratic control. Some reporting indicates that House Democrats want to avoid a motion to recommit by House Republicans, which would allow Republicans to add noxious amendments to the resolution. House rules prohibit the House Rules Committee from reporting a special rule (which governs how the resolution is handled on the House floor) that would prevent the motion to recommit from being offered on initial passage of a bill or joint resolution—but a concurrent resolution does not have this constraint. So a concurrent resolution is procedurally easier within the chamber, even though it is constitutionally suspect.

In both cases, however, the real problem is the scope of resolutions that qualify for these expedited procedures. Given the Trump administration’s reliance on the 2002 AUMF, resolutions of the type covered by Sections 1546 and 1546a would, in the executive branch’s view, have no direct effect.

For concurrent resolutions covered by Section 1546, there is not much that Congress can do to remedy this situation. As concurrent resolutions do not have the force of law, they cannot supersede prior statutory law or install legal requirements beyond those triggered by the War Powers Resolution itself (if those are even available post-Chadha).

Joint resolutions, however, do have the force of law. As a result, Congress could try to resolve this issue by pushing for a joint resolution that goes beyond the narrow confines of Section 1546a—for example, by revoking or limiting the authorization provided by the 2002 AUMF. The Senate joint resolution arguably tries to do this in a small way by requiring that any use of force be “explicitly authorized” by statute. That said, such additions might lead certain members of Congress to challenge whether the joint resolution in question truly qualifies for the War Powers Resolution’s expedited procedures, resulting in procedural questions on which Senate parliamentarian would have to weigh in.

Consider how this played out in the discussion over Yemen. In 2018, the Senate voted 96-3 to introduce a strict germaneness requirement for any amendments during one Yemen debate. A second Yemen-related joint resolution that originated in the House was rendered ineligible for expedited procedures because of certain provisions House Republicans had added to it through a motion to recommit. Yet the final version of the Yemen joint resolution, S.J. Res. 7, did ultimately contain a few provisions that arguably pushed beyond the original scope described in Section 1546a, including one that specifically prohibited the provision of mid-air refueling services to the Saudi-led coalition conducting hostilities in Yemen.

As a result, it’s not entirely clear whether adding “explicitly authorized” language to the Iran joint resolution or other minor addendums will prove disqualifying. But more aggressive additions almost certainly will. And if the joint resolution is disqualified for the Senate expedited procedures, then it will again be subject to obstructions by McConnell and other opposed senators that are likely to prevent it from receiving Senate approval.

If the House and the Senate are able to pass identical concurrent resolutions, then the Section 1546 procedure is complete. The concurrent resolution will be adopted and the House and the Senate will have to determine what consequences they trigger under the War Powers Resolution, particularly in light of Chadha. If both chambers ultimately pass identical joint resolutions, however, the final document will be passed to Trump for signature—but he will almost certainly veto it. Once this occurs, two-thirds of both chambers (where consideration will again be subject to Section 1546a expedited procedures) will need to vote to override his veto for the joint resolution to become law. This is an incredibly high threshold of support, one that Congress has rarely achieved in recent decades. The final Yemen joint resolution ultimately failed to secure this support, leaving it unenacted. Given strong Republican support for the president, a similar outcome seems likely in regard to any Iran resolution.

Law and Politics

If Congress does somehow enact a concurrent or joint resolution over Iran, the consequences are not entirely clear. In the case of a concurrent resolution, the executive branch is almost certain to refuse to change course, arguing that the provision of the War Powers Resolution requiring that it comply with the concurrent resolution is unconstitutional under Chadha. Congress could perhaps use this as an opportunity to pursue a legal challenge in order to determine whether Chadha truly applies to the War Powers Resolution. But this effort seems unlikely to succeed. Even if it somehow did, the executive branch would still be able to argue that the War Powers Resolution has no bearing on its operations against Iran because they are statutorily authorized under the 2002 AUMF.

The likely consequences for a joint resolution are similar. If the joint resolution reflects the narrow scope described in Section 1546a—the safest way to ensure eligibility for the expedited procedures—the Trump administration will almost certainly argue that the resolution does not have a direct impact on operations against Iran, at least insofar as it views these activities as authorized by the 2002 AUMF. Alternatively, if the resolution that is eventually adopted requires that the use of force against Iran be “explicitly authorized”—as in the Kaine joint resolution—then this case will likely be harder for the Trump administration to make credibly.

Even broader joint resolutions—such as those that might limit the 2002 AUMF—would make it harder for the Trump administration to avoid the conclusion that it must comply with the joint resolution’s mandate. To do so, it would have to find other ways to interpret around the resolution—perhaps by construing “hostilities” under the War Powers Resolution to somehow exclude its activities, or by construing the language requiring withdrawal as mandating a halt to hostilities that are already ongoing rather than prohibitive of future military action. Or Trump could claim the exclusive constitutional authority to act against Iran regardless of Congress’s wishes—a broad and almost certainly controversial assertion. Yet such joint resolutions are the most unlikely to qualify for the Section 1546a procedures and, thus, the least likely to be enacted.

If the Trump administration continues to use force against Iran in spite of the joint resolution, then Congress may have to turn to the courts. Federal courts have generally used prudential doctrines to avoid reaching the merits on war powers matters. Congress will face questions over the ripeness and mootness of its challenge, along with the significant hurdle posed by the political question doctrine and the problem of establishing standing either by one chamber or both. Theoretically, though, this might force the federal courts to engage in judicial review of the scope of the 2002 AUMF or whatever other statutory or constitutional grounds the Trump administration may rely on. In this sense, while enacting a joint resolution over Iran is unlikely to lead to an immediate cessation of military operations, it may open up new avenues for legal challenges.

But all this is a long way out from where Congress currently stands. Given how unlikely it is that the Iran joint resolutions will be enacted into law in the first place, the main impact of the resolutions on Iran and the debate over them will be political, not legal, in nature.

House Democrats no doubt hope to re-create for Iran what the use of War Powers Resolution procedures did for the debate over the Trump administration’s policies toward the Yemen conflict. In that case, the ability to force both chambers to engage in floor debates and take public votes proved useful for imposing political costs on legislators who supported the Saudi-led intervention in Yemen. Over several cycles of debates, this not only helped to unify Democrats in opposition to Trump’s Yemen policies but also pulled over several Republican votes, which ultimately led to the bipartisan passage of the Yemen resolution in both chambers. Even though this joint resolution was ultimately vetoed and never became law, it served as a clear sign of how little support Trump’s Yemen policy had. This, in turn, appears to have pressured the administration to moderate its policies in various ways, including by ending the provision of mid-air refueling services to the Saudi-led coalition and providing stronger support to efforts to deescalate the conflict.

The politics surrounding Iran, however, may be different. To be sure, there has been some bipartisan skepticism surrounding the possibility of war with Iran. Most notably, over the summer the House approved and 51 senators supported amendments to the National Defense Authorization Act (NDAA) that would have curtailed the president’s authority to use military force against Iran—margins that would be sufficient to pass an Iran resolution through expedited procedures but not to override the veto of a joint resolution by Trump. That said, intervening events—including the fatal Dec. 27 rocket attack by Iran-affiliated militias in Iraq, the Dec. 31 attack by the same on the U.S. Embassy in Baghdad, and Iran’s direct Jan. 8 missile attacks on bases housing U.S. troops in Iraq—may have softened some senators’ resolve to demand presidential forbearance and insist on a congressional role.

Politically speaking, the Yemen resolution was a murky issue for many Republicans: The case for U.S. involvement there had not been made clear to many constituents, and a string of bad press had also made U.S. involvement increasingly unpopular. Nor was it politically costly for McConnell to allow some of his members to break with the president on Yemen policy, in part because the measures under consideration were unlikely to put any actual legal constraints on the president.

Iran is different. While circumstances could change, it’s hard to imagine a significant number of Republicans in the Senate breaking with the president on the issue at this stage. Aggressive response to the threats posed by Iran and Iranian-backed terrorism continues to enjoy wide support among the Republican base. And as November 2020 draws nearer, Republicans running in tight races may use the issue to try and paint their Democratic opponents as soft on Iran and terrorism.

But that’s not a reason to abandon congressional action to restrain the president, even if the legislation in question is unlikely to be enacted into law or have a legal effect. Merely pursuing and debating such measures demonstrates at least some congressional concern for the use-of-force issue and interest in asserting institutional control over it. The debate and votes of the joint resolutions may force a discussion among members and the public about the merits of the military action and whether it will make America safer or not. At a minimum, having to take an actual vote forces members of Congress to make their views and opinions on such matters clear to their constituents, helping to ensure electoral accountability—whichever way that may break.

The resolution also helps prolong the ongoing conversation between the executive and the legislature about the legal basis for—and policy wisdom of—the Soleimani strike, along with other Trump administration actions in the region. That discussion alone could have both political and policy value. Putting pressure on Republican legislators to defend the Trump administration may, in turn, push the executive to disclose more information regarding the facts and legal analyses behind its decisions. And it could serve an important oversight function in flushing out more detail on the apparent lack of consensus and communication with the executive branch on the issue prior to the strike and any subsequent policy mismanagement. It can also highlight differences in legal views of the strike between the two branches, perhaps setting the stage for future discussions on the scope of congressional control over the use of force.

While far from risk free, there are numerous reasons that Democrats in the House and the Senate may wish to pursue a joint resolution on Iran under the War Powers Resolution. Legally restraining the president is unlikely in the short term. But in the long run, the political impact may have the same effect.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.
Margaret L. Taylor was a senior editor and counsel at Lawfare and a fellow in Governance Studies at the Brookings Institution. Previously, she was the Democratic Chief Counsel and Deputy Staff Director for the Senate Foreign Relations Committee from 2015 through July 2018.

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