Lawfare Daily: Congressional Resolutions to End the War in Iran

[Intro]

Scott Anderson: It's a concurrent resolution that says, "Directs the president remove U.S. armed forces from hostilities with Iran." It has a carve-out for certain types of defensive actions that are permitted, basically for action necessary to defend the United States or allies, but basically would direct an end to U.S. participation or hostilities in Iran if enacted, if it has the force of law.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with my colleague, Lawfare Senior Editor Scott R. Anderson.

Scott Anderson: The joint resolution doesn't seem on track to be fully enacted 'cause of the veto potential. The concurrent resolution seems like it maybe it could. If it gets as many votes as the joint resolution did in the Senate, it could be enacted, and the expedited procedures work as seemingly intended by the authors of the War Powers Resolution, but then it won't have the force of law because Section 5[c] is generally considered to be unconstitutional under Chadha.

Natalie Orpett: Today, we're talking about what Congress can do to get the president to end the war in Iran using the War Powers Resolution. It's more than you might think. Congress does have tools at its disposal that could meaningfully restrict the president, even if it can't overcome a veto, but you have to dig into some pretty complicated congressional procedures to understand why.

[Main Podcast]

So Scott, you just published a piece in Lawfare about congressional resolutions about the war in Iran, and it follows up on a piece a couple of weeks ago about which we did another podcast. But let's start by reminding our listeners of the broader context here. And to take it at a very, very high level, we know that under the Constitution, Congress is supposed to declare war, but it hasn't actually done that for the hostilities currently underway in Iran, which is not actually unusual because Congress hasn't formally declared war since World War II.

But we know also here, with respect to the war in Iran, that unlike conflicts like Afghanistan and Iraq in the early 2000s, there's also no legislation that Congress has passed to authorize the president to conduct hostilities in the same way that the AUMF did, for example. So what role is Congress even playing with respect to the war in Iran, and what is this War Powers Resolution you've been writing about so much?

Scott Anderson: So the War Powers Resolution Congress enacted in 1973 over a veto by President Nixon to try and reinsert itself into questions of war and peace to some degree. This is in the aftermath of the Vietnam conflict, where there was a feeling that even after Congress withdrew the Gulf of Tonkin Resolution, which had provided statutory authorization, at least in the executive branch's views, for the early phase of the Vietnam War, it got withdrawn in 1971.

The Nixon administration continued to proceed with the war without any clear statutory authorization, citing a bunch of implied authority, inherent constitutional authority on behalf of the president. And in response to that, Congress enacted the War Powers Resolution as a law that says, "All right, Mr. President, if you're gonna use military force, we're gonna set some limits on that, on your own authority.”

Both premised on the idea that the Congress in the end has the authority to declare war, even though in practice, as you noted, the executive branch has pursued a lot of uses of military force without congressional authorization of any sort as is the case in the current Iran conflict.

And so what the War Powers Resolution does essentially is, is a number of things, but I think two are most important for the purpose of this conversation. One, it installs a timeline for the use of military force. This is really, I would say, the only hard legal restriction it imposes. It says that 60 days, technically 62 days 'cause of the way the clock gets counted, after the president initiates hostilities, I should say inserts U.S. forces into hostilities or a situation where imminent involvement in hostilities is expected, I'm paraphrasing the requirement, the president's supposed to withdraw them from those hostilities unless he secures congressional authorization.

Specifically it says, like, terminate those hostilities. It can be extended an additional 30 days in certain circumstances. There are certain cir- circumstances where that doesn't apply, but most of the time that applies to all sorts of conflicts. And as we talked about last time, the Trump administration has put forward a few arguments about why even though it's still engaging in military action against Iran past the 60-day mark, which elapsed on May 1st, it argues that it's, has not violated that provision.

That was the topic of our conversation last time. This article I wrote on our conversation this time is focused on the other, I think, key operative prongs of the War Powers Resolution, which is that it installed special procedures by which Congress could enact certain resolutions and actually ended up having, after some subsequent amendments, two different channels for these types of resolutions, where it could direct the president to withdraw U.S. armed forces from any ongoing hostilities, and the president was supposed to comply, at least as envisioned by the original authors of the War Powers Resolution.

And this was a way Congress could assert control over an armed conflict even before the 60-day mark or after it, supposedly if the president were still not complying with the 60-day mark basically creating this kind of presumption where up through 60 days, the executive branch has the initiative they're able to act on, at which point they're supposed to get congressional authorization during that time.

But if Congress wanted to assert itself and say, "Mr. President, you need to remove these forces from hostilities," it could do so. Because of a bunch of intervening legal decisions and factors over the last 50-plus years, those provisions don't operate quite as well as or nearly as well as their authors intended and have never really operated that well.

But in the last few years, particularly I would say the last... since the first Trump administration, we've actually seen a revival of these resolutions because of what they allow members of Congress to do on the floor in terms of forcing debate on certain measures. And thus far, that's actually really been Congress's key role in their own conflict.

The Trump administration has not come for any authorization, has not yet come for any supplemental appropriations, although it very well might have to soon. It's suggested it might as soon as this summer. And so Congress hasn't been asked to formally pass judgment on the Iran conflict. It will have to take, legislate on it to some degree because we have annual defense authorization appropriations bills, and again, there is this potential for a supplemental appropriation request coming through soon, so Congress is going to have a bite at the apple at some point in the near future.

But up to this point, the executive branch has been proceeding more or less on its own authority, and Congress has essentially been debating the matter, taking votes, and trying to see if they can assemble the critical mass necessary to take action through one of these two channels that are resolutions that would require the president, or at least could in theory require the president, to withdraw U.S. forces.

Natalie Orpett: Okay, so that's a really helpful framework. I'll just reiterate for folks that if you are interested in understanding the piece of the War Powers Resolution that pertains to the 60-day cutoff that Scott mentioned, we do a deep dive into that in our podcast of a couple of weeks ago. The bottom line of which lays the foundation for this piece, which is to say that Scott's, I think, pretty clear position is that the War Powers Resolution is not contrary to some critics' views, a toothless instrument, and should be really understood in its full context and for the many things that it can accomplish separate from a literal forcing of the president to remove troops from active hostilities.

So Scott, let's spend the rest of the conversation talking about this sort of second prong of the War Powers Resolution. We've sort of gone through the 60 days, 60 days past long ago, as we talked about last time. The administration did have some legal arguments. They weren't really adjudicated anywhere, which was to be expected.

But there is this other piece now, and I think it's largely gone overlooked that Congress can still take action in a way that's meaningful. But talk to us about what's happened since the 60-day cutoff back in May, and as you mentioned, the couple of votes that have already happened on the question of the War Powers Resolution thus far

Scott Anderson: So yeah, so we've kind of seen two key votes take place over the last two to three weeks.

On May 19th, the Senate voted 50 to 47, so, you know, by the slimmest of passage ratios, a, you know, a majority because it wasn't a tie. The vice president didn't come in to cast a tie-breaking vote to discharge a joint resolution that directs the Trump administration to withdraw U.S. armed forces from hostilities in Iran from the Senate Foreign Relations Committee.

This is the first of several procedural steps that, according to special procedures, the War Power Resolution spells out, can kind of move this joint resolution along towards enactment. But it's notable 'cause all three of those big steps and there's a couple intervening measures we can talk about, all are based on a majority vote.

And so if you have 50 to support one, there's a good chance you'll get them to support the subsequent ones, or at least you, you've got most people on board to do that. So there's a serious chance that maybe there's a critical mass to actually enact this joint resolution eventually, but we haven't seen a follow-on vote yet.

I think that's likely to take place this week, this coming week or the week after. Then we also have, on May 20th, the House took a vote on a similar concurrent resolution. That's a different type of resolution, which we should get into the distinction between. Basically saying the same thing, that the president should withdraw from hostilities in regards to, or move U.S. armed forces from hostilities in regards to Iran.

That resolution was called for a voice vote on I believe it was on May 20th. The chair of the convening at that point said, essentially, "Oh, the oes have it." The sponsor of the resolution, I believe it was the sponsor, Representative Meeks who's a, a ranking member of the House Foreign Affairs Committee, said, "Oh, I want to, I want to actually cure vote. I want everybody to actually record votes on this." At which point they decided to pass the buck and delay that measure, which is usually a good sign that they are not sure they actually have the votes for the measure to go the way that the leadership wants it to go and, and would desi- like it to go.

They were able to postpone that all the way till June 3rd, this past Wednesday, at which point the House finally took that vote, and in the recorded vote, actually, the resolution had enough votes to pass outright. It ended up passing 215 to 208, with a number of Republicans joining almost all Democrats in eventually passing that resolution.

That resolution now also goes to the Senate. So the Senate is now teed up with both resolutions, which it'll be addressing in the coming days. One, the joint resolution, which is through the first of several procedural steps to be enacted, and then the concurrent resolution that has been passed by the House and is now sitting with them.

Natalie Orpett: Since you mentioned what happened on May 20th, which was that in the House it was about to go up for a vote but ended up not and you mentioned that that was usually a sign that the leadership, which was in charge of deciding when votes are going to come up, thought that they didn't have the votes for it to come out the way that they wanted.

Let's just put a finer point on that. So what was it that was about to be passed that the leadership did not want to have pass, so it seems?

Scott Anderson: The concurrent resolution I mentioned. So it's, it's a, it's a concurrent resolution that says, "Directs the President remove U.S. armed forces from hostilities with Iran."

It has a carve-out for certain types of defensive actions that are permitted, basically for action necessary to defend the United States or allies. I'm, I'm badly paraphrasing there, but something to that effect. But basically would direct an end to U.S. participation on hostilities in Iran if enacted, if it has the force of law.

Those are the two big outstanding questions that, that hinge in this whole process and make it a little bit more complicated than it may seem at first blush.

Natalie Orpett: So you mentioned in there between what was happening in the Senate and the House, two different types of resolutions, and I wanted to ask you what those are, how to distinguish them, and why it matters.

So one is a joint resolution. That was coming out of the Senate. One is a concurrent resolution. That was happening in the House. Talk about those.

Scott Anderson: Yeah. So there's a really important distinction between these two types of resolutions, both of which are being implicated in these War Powers Resolution processes and that are used very different ways because they have different legal effects and significance.

A joint resolution is the equivalent of a bill. It's like a, a, it's, it's a way to enact legislation, enact a statute. And because of that, it has to be passed by both the House and the Senate, and then it has to be presented to the president, who then has the opportunity to veto it. And if the president vetoes it, then it, it does not become law, but it goes back to the House and the Senate, who, if they can rally two-thirds support in both chambers, can override the veto.

So that's how the original War Powers Resolution was enacted, which was itself a joint resolution. And when a joint resolution gets enacted, it has the force of law, meaning it is the equivalent of federal law of any other statute, supersedes prior statutes where incompatible, things like that. It is, it is full federal law.

Concurrent resolutions are different. Concurrent resolutions are measures that just go to the House and Senate for passage, and they are primarily used to do administrative things or expressive things or take institutional actions on behalf of Congress, various things that Congress has the power to do, but that do not require presentment to the president because they're not exercising legislative authority because they don't create obligations that have the force of law.

They don't create federal law. Instead, they just have Congress take different actions. These both became implicated with the War Powers Resolution because when it was originally enacted in 1973, the War Powers Resolution has a provision, Section 5(c), that says, "Mr. President, if Congress enacts a concurrent resolution directing you to remove U.S. armed forces from hostilities, you have to do it."

And then it went further and established certain expedited procedures for considering concurrent resolutions, both in the House and the Senate, that were basically designed to move them forward on a majority vote. Basically saying, "Okay, if you have majority support, you can, within the matter of two weeks, give or take, get a resolution fully voted through this chamber," and it means that Congress can, can rein the executive in relatively quickly within a matter of a couple of weeks, maybe sooner if it can get enough critical support and impose that obligation.

And th- that statutory obligation, in theory, came from Section 53 of the War Powers Resolution. It wasn't actually from the concurrent resolution itself. The concurrent resolution's adoption was just triggering the statutory obligation The problem this ran into arose in 1983, 10 years after the War Powers Resolution was enacted, in a Supreme Court case called INS v. Chadha, where it struck down a arguably similar statutory set up in a different statute. And said, basically, "Look, if a congressional measure is intended to have the force of law, it's creating new legal obligations, and it's changing the way other laws apply, then it needs to go to the president for presentment. It needs to come in the form of a full statute."

Congress can't exercise what is widely known as the legislative veto, where it makes the outcome and the effects of its legislation contingent upon other action other than the enactment of superseding law. The problem with this is that legislative vetoes were built into all sorts of legislation, particularly in the foreign relations and national security space.

So at least by many people's accounts, although there are some scholars who, who question this getting rid of the legislative veto really shifted the balance of power because all of a sudden, Congress had given these broad delegations to the president on the understanding that a simple majority could rein them in.

But now the simple majority couldn't do that 'cause it couldn't trigger these legislative vetoes. In several cases, what Congress did is that it went back after Chadha and enacted new expedited procedures that allowed them to do the same things through joint resolutions. This solved the Chadha problem 'cause joint resolutions are subject to present, for, to presentment.

They can have the force of law, so you're not, you know, violating the Presentment Clause by not giving the president opportunity to veto, but you also have to give the president an opportunity to veto. And insofar as these measures are usually intended to, you know, restrain the current president, they are almost certainly going to veto.

So it raises the effective threshold for restricting the president to two-thirds of both chambers of Congress, as opposed to a simple majority of both chambers of Congress. A pretty big shift, particularly in our current moment of a, a kind of sharp partisan split that's fairly even between the two chambers, although obviously it bounces back and forth, side to side.

In the War Powers Resolution context, though, the one thing that they did a little different than other contexts is they actually left the old procedures in place. So there are still all these old procedures that are still in the law about concurrent resolutions and, as we can talk about, are still being used for certain things, and then they enacted additional procedures that were somewhat different for joint resolutions.

But because of internal debates between the House and the Senate, those additional procedures that got enacted now codified at Title 50 of the U.S. Code, Section 1546 lowercase (a), for anybody who wants to read along at home, those procedures only apply in the Senate. In the House, those joint resolutions have to go to regular order. And so it creates this discrepancy in procedures between the two mechanisms that leads to certain patterns with, in how they've been used in the last few years.

Natalie Orpett: So one quick aside, which is implicit in what you've been saying, but I just wanna spell it out a little bit for people. Explain what the significance is of these expedited procedures and of having a different threshold for votes in the Senate, because as you were describing with the joint resolution, you know, it seems like it's quite a big cost to have to present something to the president and know that it can, and in many situations will be vetoed which makes it feel like a frivolous exercise.

But as is the premise of your piece, it's really not. But explain to us a little bit more generally what the significance is of these procedural bits that just help move things faster than they might otherwise.

Scott Anderson: Absolutely. And, and not just faster with more certainty, they lower the threshold. You know, in the Constitution, the, the baseline requirement for Congress to act is a majority basis once you have quorum, right?

So both chambers can take, can take, you know, actions within their authority. They have to have a majority vote. But they also each get to establish, and actually have the exclusive constitutional authority, to establish their own rules of procedure. And they have used those in different ways to actually raise the bar beyond a, a simple majority for a variety of often very good reasons about managing workflow, managing partisan agenda, things like that.

So in the Senate, the most famous we, we are familiar with is the filibuster, which basically says on any debatable motion, which is the vast majority of motions, any single senator can filibuster, which used to mean you would stand up and just keep talking to the floor and debating, debating, debating until you ran the clock out and everybody gave up, and you could kill the measure.

But now, essentially allow, they allow people to just say, "I'm filibustering," and then nobody moves it forward unless you get 60 other senators to vote for closure, which allows it to move forward. So it basically has a super majority requirement of 60 votes to move forward on, on most measures in the Senate.

That would include joint resolutions and concurrent resolutions without these expedited procedures. In the House you don't have that super majoritarian requirement, but you have very strong norms and processes that center around the leadership control of the majority party setting the agenda. And so it's really hard for members of Congress to bring an item forward on the floor of the House if it doesn't have the support or at least the acquiescence of the majority leadership.

Now, sometimes the minority negotiates to get votes on certain items, sometimes enough bipartisan support comes forward that the majority leadership says, "Okay, we'll let a vote happen on this anyway." And sometimes you see things like discharge petitions, which are these kind of extraordinary measures where if you get a simple majority of members of the House to sign a petition and go through certain procedures, eventually you can get a measure to the floor, even if the speaker doesn't allow it to happen.

That's actually happened a few times in this Congress to Speaker Johnson with members of his own Republican caucus moving certain measures forward. But the key point is most of the time it's really hard to move a concurrent or joint resolution or any other legislation forward unless you get the speaker's support.

The expedited procedures, which again only apply to concurrent resolution in the House, are designed to, to buck that and say essentially, "Look, if certain types of measures, certain qualifying measures," in this, in this case a concurrent resolution saying, "Mr. President, remove U.S. armed forces from hostilities," gets put forward, then after a certain period of time, it's gonna automatically move through the process from committee to the floor to a vote and- Eventually there'll be an, it can be enacted on a simple majority basis.

Natalie Orpett: Okay, so let's bring this all back to Iran, and as you mentioned, there have been a couple of different votes. Talk to us about where we stand right now in this moment. What are the most recent votes? What is teed up for the next vote?

Scott Anderson: Sure. So we've seen a bunch of different votes take place in both chambers. The measure that passed the Senate, or at least passed the first procedural hurdle of the Senate, is discharge from committee on May 19th, which is Senate Joint Resolution 185. As I mentioned before, is this measure that, again, directs the president to withdraw or remove U.S. armed forces from hostilities in Iran with certain carve-outs and caveats around defensive actions.

It was the eighth of these sorts of resolutions put, have been put forward. We've seen seven prior ones fail, fail to hit that 50-vote threshold that this one finally did. All joint resolutions. The Senate has only debated joint resolutions so far. The House, meanwhile, that HConRes 86 is the measure that was passed on June 3rd and has been fully adopted by the House, unlike the joint resolution in the Senate, where it still has additional procedural steps to go through.

That resolution was the third concurrent resolution we've seen debated in the House around Iran since February 28th, and the prior two again failed to reach that threshold. I think the second to last one actually had a, essentially a tie between the two sides but wasn't able to proceed. This one finally did, tipping over by a 215, 215 margin.

The thing that's interesting about this is that we've seen the House only debate concurrent resolutions and the Senate only debate joint resolutions. Without understanding the expedited procedures, that wouldn't make any sense because they each need to debate a measure that goes to the other chamber or, you know, kind of adopt the same version of a particular measure that they can then exchange and get to the same page.

But instead, the reason we're seeing this happen is because in the House, there are only expedited procedures for concurrent resolutions. And so they are using those expedited procedures to force these votes on these measures to be able to pass them and send a strong signal that says, "Hey, we oppose what you're doing, Mr. President. And on top of that, we can put pressure on mem- other Republicans here by forcing them to take public votes on this issue where they might rather not," because it forced them to take a public stance and say, "Actually, we agree with Democrats on this. We, we don't like the way this war is going," which a handful of Republican members of the House have now done.

In the Senate, the same dynamics are there. There's still this instrumental use of these votes as a political tool to kind of demonstrate and put pressure on legislators to come out in opposition to the conflict or at least take a public stance on the conflict one way or the other. But you had the added factor that there are expedited procedures for joint resolutions, and joint resolutions, in theory, are more effective because, again, they don't face the Chadha problem.

They can result in hard legal obligations if you can override a veto and get enacted. And so there's been this preference for joint resolutions in the Senate and this has been true, I should say, in prior debates. We see saw a similar set of debates around the Yemen conflict in 2018 and 2019, around Iran and the Soleimani strike in 2020.

And in those cases, we saw a similar type split, a little bit more crossover in concurrent resolutions in particularly that latter case, but the, the focus ended up settling on joint resolutions in the Senate and then concurrent resolutions of the House under leadership that was allied with the White House.

That, in the case of the la- first Trump administration, that changed, of course, after 2019 when Democrats took control of the House. Then all of a sudden you saw Democrats in the House being able to enact joint resolutions, and you saw debates along those lines as well, and ultimately saw several joint resolutions get passed by both chambers.

The trick now, the hard part now is that the joint resolution that may well get passed by the Senate still have to go to the House, where there's no expedited procedures for them. So What the odds are they get passed by the House is, I don't know, but it's a much harder road than if there were Democratic leadership willing to put up for a vote.

You may have to do a discharge petition or find some way to get leverage over leadership to get them to f- to schedule a vote on it and allow it to move forward, which I think would be a hard thing to do, but I don't 100% know. So it's not clear joint resolutions can go forward, and of course, even if the House did adopt it, it almost certainly would be vetoed by President Trump, and it seems pretty clear that two-thirds support in both chambers is something that this resolution is not gonna get anytime soon, barring something really dramatic changing in the current vote patterns.

So, you know, the long and short of it is both sorts of resolutions right now, neither one seems on track to be full... Well, the joint resolution doesn't seem on track to be fully enacted 'cause of the veto potential. The concurrent resolution seems like it may be it could. If it gets as many votes as the joint resolution did in the Senate, it could be enacted, and the expedited procedures work as seemingly intended by the authors of the War Powers Resolution.

But then it won't have the force of law because Section 5C is generally considered to be unconstitutional under Chadha. Some people disagree with that. There are scholars who say it shouldn't be seen that way, and maybe someone will sue and bring a court case and, and persuade the courts that it shouldn't be that way.

But the operating presumption of a lot of people is that Chadha invalidates Section 5(c) effectively, and therefore, the concurrent resolution won't have the effect of imposing a new hard legal obligation on the executive branch as it, it originally would have in the original War Powers Resolutions schema.

Natalie Orpett: Okay, so that's really helpful, and I do think it's, it's useful to understand that it is not simply because the left hand is not talking to the right hand that there is a concurrent resolution in the House and a joint resolution in the Senate, and these two things do not match without some sort of reconciliation.

So setting aside the idiosyncrasies of procedures in the two houses and why they end up with this odd sort of conflict in not being able to come out with the same type of resolution, one thing that's really interesting in your article is that you describe that they're actually, for purposes of, if not legally binding or force of law exactly, that there are legal implications for resolutions, and in particular, you prefer one type of resolution over the other.

So talk to us about all of that, the difference between these two resolutions. Which one do you think is preferable under the circumstances, and why is that? Presumably, it's not only because you prefer the Senate over the House or vice versa.

Scott Anderson: No, not, not at all. Not at all. I have friends, friends on, in both chambers, on both sides of the aisle.

What I would say is, is this, essentially. First is this idea of what are we trying to accomplish with these resolutions? There's clearly a political element of using these resolutions in terms of they are really effective tools at, at building these coalitions and slowly building pressure to bring people over to oppose these conflicts are unpopular.

It worked very effectively in the context of the Yemen conflict in 2018 and 2019, and we're seeing a similar strategy here, I think, begin to bear fruit. The fact that you've slowly been able to pull Republican legislators over in small margins, but significant enough to change the outcomes of some of these votes because of the narrow control of Congress, that's a pretty big political impact.

But there's this general sense that, well, none of these things are gonna have any legal impact because Chadha blocks concurrent resolutions from having an impact, and joint resolutions are gonna get vetoed, or there's no realistic possibility of override. So they don't really have any legal impact, and so they're all kind of equally coming out in the wash as not having legal impact.

It's really about the symbolic s- importance of these votes and these measures. And I've even described it that way in my prior writing, I should note. I'm, I'm as guilty of this as anyone. And I think there's a lot to that to some degree. Again, the political impacts are real and significant, and that may well be a primary driver of why Congress is using these things, or members of Congress are using these things these ways.

The point I make in the piece, though, which I think is an important one, which is that even though these measures lack the force of law, that doesn't mean they're without legal effect. The executive branch's whole argument as to why the president has the inherent constitutional authority to use force in the way he does is premised on congressional acquiescence.

It is premised on the idea that Congress has effectively you know, tacitly delegated this authority to the president or accepted that the president has this authority and that that has effectively, even though the plain text of the Constitution says Congress has the authority to declare war and the president's the commander in chief of the armed forces, that has executive power but doesn't have any more specific, you know, war powers than that, whereas Congress has a, a whole bunch of other specific authorities in addition to declaring war.

You know, that plain text alone, you wouldn't really look at that and say, "Oh, this means the president can do whatever he wants in using military force." But that's the direction the executive branch has put f- forward up to certain limits. And to get there, they basically say, "Well, look, we have a long, long history of the presidents taking actions like this and Congress never objecting, a lot of times even embracing it and accepting it and endorsing it."

I should say a lot of people, including me, take issue with that framing of both the history and the way you assess congressional acquiescence in that history. There's some truth to what the executive branch is saying, but I think it oversimplifies it dramatically. I think a lot of other folks would, would be even stronger in objecting to how the executive branch handles that.

But even if you were to take their argument on face value things like concurrent resolutions and veto joint resolutions that clearly manifest votes and clearly express the views of Congress are clear evidence of congressional opposition. And legal frameworks the executive branch relies on look to congressional opposition to say, "Well, can the president take this action? What degree of congressional acquiescence is he getting?"

The two most familiar are both from the Youngstown decision of 1952. This is Justice Frankfurter's idea of the historical gloss. This is the idea that long patterns of interbranch behavior that aren't objected to can lead to a, a historical gloss that kinda shapes and can even add to a little bit the power of the branches, and that that is an argument for why the president can use this authority.

Notably, that's also an argument some people put forward as to why the legislative veto should be permissible in, in spite of the Presentment Clause, but that's a, an aside. The other one perhaps even more famous framework, is Justice Jackson's tripartite framework which basically says, "Okay, you know, the president's authority fluctuates with the degree to which he has the agreement of Congress. Where Congress is silent, then maybe the president can a- take action or not. It depends on how we read the implicit and express will of Congress as expressed. But where Congress opposes what the president is doing, then the president's authority is at its lowest ebb and is supposed to be subject to immense scrutiny if he's trying to do something in that zone."

Both Frankfurter and Jackson, in that opinion, looked to a whole range of congressional expressions of views in assessing the degree of acquiescence or opposition of Congress well beyond just statutory enactments. They looked to legislative history in particular. They looked to a variety of other enactments, and that's a trend the Supreme Court has continued up into the Roberts Court where we've seen both frameworks applied based on similar assessments of a more holistic record of congressional activity.

And the executive branch itself has embraced that tool. It has frequently cited concurrent resolutions, at times simple resolutions. Those are resolutions where just the House or just the Senate adopt a resolution just representing its view- that chamber's views legislation that has non-binding provisions like findings language.

They cite all this as signs of congressional acquiescence and support for what the executive branch is doing in a variety of cases. Presumably, the opposite is true, too. If Congress does something the opposite of that, that should weigh against the president's authority. And notably, I should say also, a number of lower courts, when they have expressed reticence about reaching war powers disputes in litigation, when these things, they do become the subject of litigation rarely, but it does happen.

They've often said it's not justiciable on ripeness grounds or on political question grounds because there's no clear constitutional impasse between the political branches, meaning that there's no clear conflict that, that can't be resolved. But several have said if Congress were to take concrete action, like enacting a resolution expressing opposition, that would change things.

So there's the possibility that enacting a resolution clearly opposed to what the president is doing could even add to the justiciability factors and weigh in favor of the disputing justiciability in a way that courts haven't really embraced in the past. All this to me says these things really could have legal impact, and if you acknowledge they have legal impact, then you have to think, "Well, of these two options we have before us, which is a veto joint resolution or concurrent resolution," the first, the veto joint resolution, is where Congress has tended to put most of its energy for the last few years, where we see, seen both in the Yemen conflict and regard the Soleimani strike in 2020, two joint resolutions get enacted by both the House and Senate, then get vetoed by the president and bump down.

And there was never an effort to enact a companion concurrent resolution. There were some introduced and voted on, but, but both chambers didn't take them up. The question it raises for me, though, is that, well, which one of these two measures is a better ex- and more credible expression of congressional sentiment if what you really wanna do is put the thumb on the scale about clearly stating congressional opposition?

And I think it actually may be concurrent resolutions for the simple reason that joint resolutions, if they're vetoed successfully, they're never enacted. They're never actually instruments that are adopted. They create a lot of legislative history that seems to strongly suggest Congress feels a certain way, but we know we live in an era, unlike Justice Jackson, Justice Frankfurter, where legislative history is viewed highly skeptically by a lot of federal judges who see it as highly prone to manipulation.

They- they are used to focusing on the text of enactments of Congress, and that's what the concurrent resolution is. It's not a statute, but it is a, a- enactment of Congress with a plain text. And so particularly in this moment in, in, in our kind of textualist era that most federal judges, that's the lens through which most of them are operating, at least as kind of a initial presumption, as a, as a first order approach to problems, I think concurrent resolutions may actually be more probative and persuasive.

And so there's an actual argument there that says, "Well, maybe concurrent resolutions are at least doing an addition to joint resolutions, or maybe they should be our highest priority if we have limited political capital to commit to these things." And in the present circumstance, that's particularly notable because right now we're in a situation where there's no expedited procedures for the j- joint resolution, S.J. Res. 185. If it gets passed by the Senate, when it goes back to the House, it's not clear they're gonna be able to get a vote on it there.

But there are expedited procedures for concurrent resolutions in the Senate. We can get into the fact that they have some problems and raise a lot of questions 'cause they've actually never been used before, but they're there at least. There's a hook to try and get them expedited consideration. You know, that's another argument to say, "Well, maybe we should focus on concurrent resolutions and getting both through the House instead of each the House and the Senate, you know, one doing a concurrent resolution and one doing a joint resolution, and hoping the legislative history meets in the middle."

Natalie Orpett: Okay, so before we turn to the difficulties of concurrent resolutions in the Senate, I wanna just walk through what you talked about in really concrete terms as if this was a lawsuit. So as we talked about in our last podcast and as you spoke about also in your piece, of course, that first piece, there is a tricky question as to whether anyone would ever have standing to bring this particular legal dispute, that is, whether the president has the authority to continue these hostilities in Iran notwithstanding the lack of permission or authorization from Congress.

But as you opined in your first piece, there may be some standing opportunities for some groups. So let's take, for the purposes of this illustration, as a given that someone has met the standing threshold and they are now presenting a lawsuit challenging the president's authority to continue hostilities.

So with the concurrent resolution, you mentioned two different pieces that it might be able to accomplish in a way that other expressions of congressional intent might not. The first is justiciability, the second is on the merits. Can you just talk through again in a little bit more concrete terms what that would look like in a lawsuit?

Scott Anderson: Yeah. I mean, you know, essentially you will have, you know, litigation. You will... If somebody's able to establish standing, you will have the executive branch most likely argue on the premise of a number of other cases that the dispute in question as to whether it is, you know, they're complying with War Powers Resolution, whatever the basis of the lawsuit is, is not subject to adjudication, not either because it's not ripe, which is usually an argument that says, "Well, there's no clear impasse between the political branches. There's no clear split that can't be resolved. Congress isn't actually opposed to this," to phrase it slightly differently, at least they haven't acted as if they are.

And then the political question doctrine, which is a, a doctrine that basically says certain issues just don't have ju- judicially manageable standards to resolve them. They require political judgment. They're left to the political branches, and this is one of them. The former, the ripeness argument, is most clearly addressed by a clear instrument expressing congressional views. Although legislative history could do it as well. I just think maybe concurrent resolution will be persuasive to a slightly broader brand of federal judges.

But basically saying, "Look, Congress hasn't enacted a resolution clearly saying they don't support this, and they don't really have any clear method towards a remedy that can get over the presidential veto because, you know, the president is disregarding the War Powers Resolution, the statute they did enact previously," whether it's the 60 days requirement or maybe you want to argue Section 53 actually isn't invalidated by Chadha.

There's a bunch of ways you can argue they're violating the War Powers Resolution. So, you know, there you have the resolution does kind of hit that ripeness justiciability point. On the political question doctrine, we've seen the Roberts court push back and narrow the political question doctrine to be a case where they say, essentially, "Look, the political question doctrine doesn't apply where there is you know, the president is acting contrary to a statute and that there's this clear conflict between the branches."

This is the Zivotofsky one, decision from 2012. I'm simplifying a little bit, but that's at least one reading of the case, and I think a, a, a dominant one, which is that, look, if there's a clear conflict between what the branch is doing with the president acting contrary to a statute, then that is justiciable.

It's not a political question because that's what courts do. They interpret statutes, and they'd interpret whether a president is acting constitutionally in line with them or not, or has some independent constitutional authority that allows him to supersede that statute. In this case, the, the violation wouldn't be the concurrent resolution.

The violation would be the War Powers Resolution because you have the 60 days violation already, as I discussed in that prior piece. Maybe you could also argue just a violation of the declare war clause generally, the Constitution generally, if, if you were so inclined. The key point there would be the, the concurrent resolution, I think, would just be additional confirmation of the opposition of Congress.

But the actual statutory violation, again, you already, as I wrote in that prior piece, you already have that there. I think that's what creates some legal risk that courts actually would find this justiciable in the first place. The concurrent resolution is kind of- additional icing on the cake for judges who, in spite of the War Powers Resolution, which was enacted 50 years ago, want to see signs that current Congress is actively opposed and actively opposing what's been done.

I should note all of this is, is speculative. Like, I don't want to sound like I'm s- predicting that a lawsuit is imminent and then will immediately be vindicated. I, I'm not suspecting that. I mean, there's reasons why we don't see a lot of litigation around this. But as I tried to make clear in our last discussion, as I would emphasize here, my key point here is that this is not a situation without legal risk for the executive branch.

And putting pressure on the executive branch is something that Congress can do by upping that legal risk. And you up that legal risk by doing things like Giving potential plaintiffs arguments they can rely on to say, "Well, we do have standing," or someone has standing, or, "Here's how we overcome this ripeness argument," or, "Here's how we overcome this political question doctrine issue."

And the more those arguments pile up, the more executive branch lawyers will have to look at them and say, "You know, Mr. President, just so you know, the harder we push on this, and frankly, the more blatantly we violate the 60-day cutoff or other War Powers Resolution restrictions, the greater the legal risk that somebody will actually be able to file a lawsuit."

And that's, has a degree of peril for us that a lot of people, I, I think, are a little too cavalier in dismissing.

Natalie Orpett: Yeah, and you actually mention in your piece, in this current piece, that there could even perhaps, however unlikely it may be, be a mechanism for Congress to actually give itself permission to have standing in this sort of lawsuit.

Scott Anderson: Yeah. I mean, so this gets into a, a, a fairly speculative part of the piece, but I think it's, it's worth drilling down on, 'cause I think it's illustrative of some of the untapped potential, potentially, in the War Powers Resolution. And perhaps even more than that, ways Congress can think creatively of the tools available to them even in a situation where statutory enactments are, are blocked, likely to be blocked by a presidential veto.

And, and that's this. Like I said previously, the concurrent resolutions have never actually been debated through the procedures provided by the War Powers Resolution. This is in Section 7 of the War Powers Resolution. Those Section 7 procedures have never been used in the Senate. The only three concurrent resolutions that have gone from the House to the Senate in the last, I think, 30 years, I think the first one was in the early 1990s, they all actually just sat in the Foreign Relations Committee and never moved out of that committee, despite the expedited procedure saying, "Hey, these are supposed to move forward after 15 days."

Looking at the record, the Congressional Research Service, in a really, really good report that they deserve a bunch of credit for that I drew from deeply for this piece, basically pointed out, look, there's these three resolutions. Each had different issues with them that, at least in one case expressly, was relied on by the chairman of the Senate Foreign Relations Committee to not move it forward, and other cases may have been, likely would've been.

And that is that one of them, Congress enacted statutory authorization within days of it coming over. And to be eligible for the Section 7 procedures, you have to be directing the president to remove U.S. armed forces from hostilities that have not been authorized by statute. So that would invalidate any sort of measures from expedited consideration.

And the other ones didn't use remove as the verb. They said things like, "You have to terminate the participation of U.S. armed forces," or, "U.S. armed forces shall not do XYZ." There was a theory that for a while, that I don't think is unreasonable frankly, that you didn't have to stick to the plain language and the specific verbiage of Section 7, but at least the chairman of the Senate Foreign Relations Committee appeared to assert that they did in at least one, and we think two cases, and nobody successfully challenged that to the Senate parliamentarian or through other measures, and so that's been kind of the operative understanding.

Notably, H. Con. Res. 86, the resolution that, that just passed the House, actually ex- almost exactly follows the language of Section 7. So it's not clear you're gonna be able to make an argument about that for this provision. But there are other risks in this procedure precisely 'cause it is new. The concurrent resolution procedures weirdly all are framed in the passive voice.

They basically say a concurrent resolution shall be discharged fr- from committee after 15 days, and then shall be brought to the floor to the vote. It's not clear what happens if relevant Senate officials don't comply with that. The joint resolution procedures, which were enacted, you know, 10 years later, are slightly more of a more modern format that other expedited procedures have followed more recently, where they basically say, "Okay, if once this timeline passes, a motion to proceed is automatically in order."

Meaning any senator can then stand up and say, "Okay, motion to proceed, majority vote, non-debatable, no filibuster, let's go." But that doesn't exist for the concurrent resolution process. And when there's no action pending on the floor, it's harder to do things like a point of order to correct things. And maybe, yes, there are things you can do, like do a motion to discharge or a motion to proceed to consideration on a measure that the Senate leadership hasn't brought up, but usually those musterd- measures are debatable, and then therefore can be filibustered, so it reasserts the supermajority threshold.

I will say, I don't know what the answer is here, what the Senate thinks. Clearly, the Senate Section 7 procedures were designed to move measures forward on a majority basis, and that is the only outcome if you think a resolution is qualifying, that's the only outcome that is consistent with legislative intent in my view in those measures.

That said, what the remedy would be if you got a bad faith actor not willing to do that isn't clear to me. That's, that's a real concern. And notably, this is something that people have been worried about for a number of years around these older expedited procedures that, that's been flagged in CRS reports and other places for a number of years.

Assuming it even gets that far, we get to the point where you can get a vote in the Senate on the concurrent resolution, there's another question, which is are amendments permitted and do they have to be germane? Section 7 doesn't say anything about either of this. And generally, concurrent resolutions are both amendable And amendments actually don't have to be germane, which is a, a phrase that's used to des- to describe when you consider amendments, do those amendments have to strictly be related to the subject matter of the legislation being amended, or can they be about anything?

Could I amend a concurrent resolution about the Iran war to increase pay to federal workers to postal workers, right? Something totally unrelated. Now, generally in the joint resolution context, the procedures when they were debated in 2018 similarly didn't have an express germaneness requirement, but the Senate voted 96 to three to impose one, which it can do by its own rulemaking authority.

And I kind of suspect you're gonna see a similar effort in the House. So I think you're likely to have to deal with only germane amendments, probably not in the House, in the Senate in regard to concurrent resolutions. But we don't 100% know. There's no technical germaneness requirement, at least currently, that clearly exists that I, that I can tell.

Then the question comes, okay, well, you do allow concurrent resolution to be amended with at least germane amendments. What does that mean? Are there ways we could expand upon this concurrent resolution to do things more effective now that we are thinking about this in terms of amplifying the legal effects of these.

And I point out a couple of different things. One, you could use finding sections and preambulatory sections in much greater detail and with much more clarity express both Congress's opposition to what exactly, like what exactly they're opposed to the executive branch doing, where it's they may be okay with some uses of force but are opposed to things otherwise.

Also, they can articulate their views of how the War Powers Resolution applies. They can say, "We do think that hostilities have continued since February 28th, even though the executive branch has offered this argument as to why it's not, and we don't buy it, and we're gonna put this in a finding section, or we're gonna put this in a preambulatory section."

A lot of joint resolutions passed through that, the prior joint resolution procedures after the germaneness requirement was, was imposed had provisions like that, other concurrent resolutions that haven't gone this far but have been adopted in the House had provisions like that. So I think that's pretty likely that provisions like that would be germane and amendable and wouldn't do anything to disqualify anything or be put outside the scope of the procedures.

And then I feel like there are two other things that you could use concurrent resolutions to do that probably people are gonna raise big g- germaneness questions about, but I'm not sure are clearly beyond the scope of being germane. One would be, as you mentioned, authorizing a lawsuit on behalf of Congress or on behalf of the House or the Senate through a concurrent resolution.

This is something Congress as a whole has never done before, although the House and the Senate have litigated as, and served as plaintiffs in cert- select litigation occasionally. But there's reason to think that Congress as a whole or the House and the Senate individually or, or acting in tandem would have standing to challenge a variety of particularly procedural failings, like a failure to come to Congress for authorization for the use of force, in ways that individual legislators can't and have consistently lost under standing doctrine the way the Supreme Court has adopted it over the last few decades.

It's not airtight, it's not certain, but it's an additional credible, colorable argument. And notably, just the House has, in multiple matters, pursued litigation challenging different executive branch actions, particularly during the first Trump administration and during the Obama administration, actually.

That's the Burwell case, and then there's another case over border wall funding and an appropriations violation there that went all the way to the D.C. Circuit. So, so that's a possibility. And I should say concurrent resolutions, you don't need legislation to do that. You are just Congress enacting and authorizing action on your behalf as an institution.

You don't need legislative authority to do it. You can do it as an institution. So you can use concurrent resolutions to do that. I'm, I'm, I'm fairly confident, even though, again, it hasn't been done before. The other thing that you can use concurrent resolutions to do is to amend your own rules of the House and Senate.

House and the Senate usually set their own rules, but just as we see in the War Powers Resolution, they can use collective measures to adopt rules for their chambers as well. Those rules can subsequently be superseded by each the House and the Senate if they so choose, but as long as they don't choose to do that, they remain on the books, either in legislation or that could be done through a concurrent resolution as well.

And so you could imagine a scenario where if Congress can get a concurrent resolution to the floor to a vote and get enough support to adopt an amendment, they could do something like they say, "Yes, we know we can't create any hard statutory obligation on you now, executive branch, but we are gonna establish this expedited procedure so that the next time we debate the National Defense Authorization Act or an Appropriations Act or your supplemental appropriations request that we understand is coming, we will automatically consider an order, in order expedited, not subject to filibuster, a motion to amend and add a provision installing a hard statutory restriction or funding cutoff for, you know, hostilities against Iran or whatever scope of activity Congress wants to cut off," a much harder measure that actually would have the force of law.

You'd have to wait for those provisions to come up, and you'd be relying on the fact that the president is gonna have a hard time vetoing those important annual measures every year, and maybe he'll veto it anyway, and it won't get you anywhere. But it gives you an additional source of leverage, and you would essentially be unbinding yourself as Congress, as an institution for the mass, moving closer to majority rule for those measures and getting rid of some of those barriers, the same way the War Powers Resolution does for concurrent and joint resolutions.

I will say these are highly speculative. I, I don't know whether either of these would strictly be germane. I suspect it's there's good arguments why they wouldn't be, but it's not cl- 100% clear to me. At least in the House we have, where we have some more i- information about germaneness applications and standards, you know, they basically say, "Well, if you are basically serving the same fundamental purpose and you're trying to do it the same way through a very closely related measure," which I think these arguably are, could be, then yeah, you can actually

That's considered germane. You can mend things that way. So I don't think, I think it's at least a possibility. I think it might be worth asking the Senate parliamentarian about. That's all creative l- uses. We don't know if the political will there is there for s- the Senate and/or the House to do that, but it's illustrative of the fact that you have a lot of these toolkits here, and if we begin thinking about ways Congress can use them, even though they may not have done it in the past, there are ways you might be able to use them to ratchet up the pressure on the executive branch a little bit more than you would otherwise.

And I think both of those measures, if you're able to get them through the germaneness assessment and actually get amendments and get them to be part of those concurrent resolutions, those would be pretty dramatic escalations of, of pressure. But even if you don't go quite that far, other measures I think can, can have similar effects.

Natalie Orpett: Taking into account all of the caveats that you just gave, let me, let me spell out what the sort of maximalist best case scenario might be for this sort of thing. So, and tell me if I have all of this correct, again, setting aside all of the caveats. Go with your most optimistic self. The Senate and the House agree on a concurrent resolution The germane amendments to it include a lot of explicit statements about what Congress does approve, doesn't approve, creates some clear assessment of the ways in which Congress believes the president has already violated the War Powers Resolution and is otherwise acting unlawfully.

They also add an amendment authorizing Congress to bring a lawsuit. They also amend their own rules to include new procedural paths, expedited paths, whatever, to further restrict or push back on presidential power, things like creating a hard funding cutoff for hostilities. Those could then also be attached to major must-pass legislation like the National Defense Authorization Act, and thus Congress has really flexed its muscle through these quite unusual and somewhat untested routes. Does that all sound right?

Scott Anderson: Yeah, I mean, from the perspective of if the, what Congress wants to do, or critical mass Congress wants to do, is to put maximum pressure on the executive branch to come to Congress for authorization or, or end hostilities in Iran with certain carve-outs, again, around defensive activities, then, like, that's, I think, the, the fullest picture of the pressure they'd be able to bring to bear through the concurrent resolution process, wh- which is something we really haven't seen done up to this date.

Again, parts of it are hypothetical. I'm not sure all of it's 100% there, but I'm not sure it's not either. And insofar as we're entering this untested territory in the Senate about how concurrent resolutions will be handled through this process, you know, these are questions I would raise and points I would explore a little bit because we don't know what the outer parameters of this process are, and, and some of these things may well end up within scope of it.

Natalie Orpett: Yeah, I think that's a great place to leave it. I mean, we are in a moment where the executive branch is certainly doing its part to test the outer limits of its authority, and it might be an interesting time for Congress to do the same. Thank you so much, Scott, for joining us.

Scott Anderson: Thanks for having me.

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