Intel: Democrats wade into legal gray area with Iran war powers vote

al-monitor House Speaker Nancy Pelosi, (D-CA) walks on the House floor to a reception on Capitol Hill, in Washington, DC, Jan. 9, 2020. Photo by Alex Wroblewski/Getty Images.
Bryant Harris

Bryant Harris

@brykharris_ALM

Topics covered

war powers act, donald trump, us-iran escalation, us congress, congress

Jan 10, 2020

The House passed a resolution 224-194 seeking to limit President Donald Trump’s ability to conduct future offensive military actions against Iran.

The resolution, which passed largely along party lines, mirrors a similar resolution that Congress passed last year seeking to end US involvement in the Saudi-led coalition’s war against Yemen’s Iran-backed Houthi rebels. Both resolutions were introduced via expedited procedures laid out under the Vietnam-era War Powers Act of 1973, which allows any lawmaker to force a vote requiring the president to withdraw from military hostilities not authorized by Congress.

But there’s one key difference: the Iran resolution may not actually have the force of law, amounting to nothing more than a symbolic gesture from Congress.

Why it matters: Mindful that President Donald Trump would likely veto the Iran war powers resolution — as he did with the Yemen bill — House Speaker Nancy Pelosi, D-Calif., opted to introduce the legislation as a concurrent resolution, which would not require the president’s signature should it pass the Senate. Congress passed the Yemen war powers bill as a joint resolution last year, allowing Trump to veto it.

Republicans — and some legal experts — have argued that a concurrent resolution does not carry the force of law because of a 1983 Supreme Court case.

1983 ruling: The Supreme Court ruled in the 1983 case INS vs. Chadha that concurrent resolutions do not carry the weight of law because the president does not have the opportunity to sign or veto them. Although the ruling concerned the Immigration and Nationality Act, Congress amended the War Powers Resolution in 1983 to allow lawmakers to pass joint war powers resolutions allowing for a presidential veto, which carry the force of law.

Even some legal analysts supportive of Congress’ prerogative to approve and disapprove military action argue that the concurrent resolution is merely symbolic. They include Sarah Burns, a war power specialist and nonresident fellow at the Quincy Institute for Responsible Statecraft, which seeks to curtail US military engagement abroad. Burns told Al-Monitor on Thursday that the Iran war powers resolution was “nonbinding in that there’s nothing the Democrats could do if they wanted to enforce anything.”

Legal gray zone: Still, a report last year from the nonpartisan Congressional Research Service noted, “Some legal analysts contend, nevertheless, that the War Powers Resolution is in a unique category which differs from statutes containing a legislative veto over delegated authorities.”

And supporters of the War Powers Resolution argue that the legal gray area is a bit of moot point anyway, because the 1973 law exists to stop the president from engaging in unconstitutional military activities not authorized by Congress in the first place.

“There is some legal debate that in this case what they are doing is expressing the position of the Congress that they have not authorized military action and as such that the president must immediately cease engaging in hostilities,” said Stephen Miles, the director of Win Without War, a coalition of activist groups lobbying for the Iran resolution. “It gets real esoteric real fast and can move past the point, if I’m being honest.”

What’s next: Democrats need to flip four Republicans to pass the Iran resolution in the Senate, assuming there are no defections in their own party. Sens. Rand Paul, R-Ky., and Mike Lee, R-Utah, have already said they will vote for it.

Additionally, Senate Democrats will need to decide whether they will pass the House’s concurrent resolution, which may not have the force of law, or a joint resolution from Sen. Tim Kaine, D-Va., which will likely end with a Trump veto.

Know more: Esoteric legal issues aside, congressional correspondent Bryant Harris has the inside story on how the Congressional Progressive Caucus, including Sen. Bernie Sanders, I-Vt., and Rep. Ilhan Omar, D-Minn., used their growing clout to push Democratic leaders to curtail Trump on Iran. 

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