The War Over War Powers

The Senate’s approval of a resolution against the war in Iran intensifies an interbranch imbroglio that is currently confined to Congress and the president but that could soon be joined by the judiciary. “I will explore all legal avenues to ensure the Executive complies with the will of Congress,” boasts the top Democrat on the House foreign affairs committee, Congressman Gregory Meeks. That portends the assertion in court of Congress’ war authority.While the Constitution grants Congress the power to declare wars, the parchment also designates the president as commander in chief, suggesting a shared role for the two federal branches in military matters. So it’s far from clear whether resorting to the federal courts would yield the results sought by the Congressional Democrats, joined by a handful of Republicans, in terms of bringing to an end the war Iran has launched against us.Mr. Meeks concedes in a statement that because the anti-war measure “passed both chambers as a Concurrent Resolution,” it will “not go to the president’s desk for signature.” Yet the congressman avers that under the War Powers Resolution, a constitutionally disputed law enacted in 1973 over Nixon’s veto, the House- and Senate-backed measure “is binding on the president and directs him to cease hostilities against Iran.”As a matter of law, though, the status of the resolutions passed by both chambers would seem to fall short of Mr. Meeks’s ambitions. Concurrent Resolutions, per guidance supplied by the Senate, “do not require the signature of the president and do not have the force of law.” A Joint Resolution, by contrast, would have required “the approval of both Chambers in identical form and the president’s signature to become law,” the Senate reports.Even so, Mr. Meeks says Mr. Trump “has no authority to continue” the war “indefinitely without our consent as the Constitution demands.” As of publication time Mr. Meeks’s office has not replied to our inquiry over whether he or other Congressional Democrats intend to file suit to compel the president to adhere to the War Powers Resolution. If the case does come before federal judges, though, precedents suggest it could face tough sledding.A left-leaning legal scholar, Erwin Chemerinsky, dean at Berkeley Law, has mooted the idea that the 1973 War Powers law can be enforced in the courts. He earlier urged that “suits should be brought, including by service members and by members of Congress.” Yet federal courts have in the past failed to overrule the president in war powers cases like Crockett v. Reagan, from 1982; Doe v. Bush, from 2002; and Kucinich v. Obama, from 2011. Mr. Chemerinsky says the Founders “unquestionably intended that the power to use military force lay with Congress,” ignoring the Constitution’s division of war authority. The president’s power to run the military, these columns have said, “implies the ability to exercise his or her judgment as to when national security warrants a deployment of the armed forces — often on short notice.” The Iran war is but the latest example of that necessity.The Cato Institute’s Katherine Thompson, a scholar of defense and foreign policy, has said that the House and Senate measures are “unlikely to force the president to bring forces home or seek congressional authorization.” In her assessment, the War Powers law of 1973 “requires a veto-proof majority to compel action, and a concurrent resolution — the vehicle used here — is likely to be challenged as an unconstitutional legislative veto.”Even a joint resolution could face legal hurdles over the constitutionality of the War Powers law of 1973, as Mr. Trump has cautioned. So Mr. Meeks can’t take for granted vindication on a claim that the president “must cease all hostilities against Iran.” A more level-headed appraisal on efforts to halt the war comes from Ms. Thompson, who asserts that “the political statement is powerful, but Congress lacks the proper tools to make it stick.”

The War Over War Powers

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