Following the conflict between the United States and the Republic of Iran over the killing of Iran’s Most powerful General and Commander, Quasem Soleimani by the United States forces in Benghazi, Iraq on Friday and the disturbances it has geared in international politics across the globe, the US House Speaker Pelosi, has on Wednesday said that the Congress will vote on Thursday towards limiting the ‘War Making Powers’ of the President(Trump) of the US.
According to the US constitutional analysis, before any US president can declare war or involve in any act of war, he or she must seek the constitutional approval of the US legislature (Congress). But Trump did not notify the Congress.
Reports from Washington Post has it that Trump only tweeted about the Iranian war behavior after he ordered the killing of Quasem Soleimani.
But Trump didn’t notify Congress, and now he’s claiming this tweet should count as enough notification for anything and everything he does hereafter:
These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner. Such legal notice is not required, but is given nevertheless!
— Donald J. Trump (@realDonaldTrump) January 5, 2020
WashingtonPost War Power Act in the US Constitution Analysis.
Constitutionally, only Congress can declare war, so the president needs Congress’s approval for sustained military conflict. That’s the primary contour of the 1973 War Powers Act, which was passed in the wake of the Vietnam War to prevent another drawn-out, undeclared war.
On Wednesday, House Speaker Nancy Pelosi (D-Calif.) announced the House will use its authority under this law to try to curb President Trump’s actions in Iran. It’s not immediately clear what that looks like, but she said a vote will happen Thursday.
So what is the War Powers Act and how can Congress use it to stop a president’s military action they don’t approve of? Here’s an explainer.
First, what are war powers?
Recognizing war powers is kind of a know-it-when-you-see-it thing, experts have told The Fix as we’ve analyzed this over the years. But Congress has been reluctant to jump in and assert its authority to declare war because doing so carries such a high political risk.
That’s largely how presidents since George W. Bush have escaped congressional scrutiny for military action with or in Iraq, Afghanistan, Syria and now, Iran. Here’s a look at what a president can do militarily without Congress, what Congress can do to force the president’s hand, and why it’s an uphill battle in Congress to do that.
What military action can a president take without Congress?
A president’s unilateral power is “something short of war. It’s the use of force by the president to achieve an immediate end,” said Phillip Carter, a senior fellow with the national-security-focused Center for a New American Security think tank, speaking to The Fix shortly after Trump launched a missile strike on Syria in April 2017 to retaliate for that regime’s use of chemical weapons.
One key and somewhat obvious indicator that Congress should be notified within 48 hours of sending troops into conflict, as the War Powers Act indicates, is if the president does something that risks triggering a sustained military conflict, said Cornell Law Dean Jens David Ohlin in an email to The Fix.That appears to be the case here: Iran has promised to retaliate, and the Pentagon has told thousands of troops to be ready for action in the Middle East.
“Legal scholars have long recognized that the need for congressional approval increases with the possibility of escalation, even in the case of an isolated military operation,” Ohlin wrote. “For this reason, Trump should have consulted Congress, and arguably should have sought approval for, a military action that could escalate to all-out war with Iran.”
Experts The Fix talked to after Trump launched a missile into Syria in 2017 said that strike was probably okay without congressional approval, as long as it was a one-off. Carter also pointed out that President Ronald Reagan didn’t seek congressional approval when he bombed Libya in retaliation for a bombing of a Berlin club in 1986. In the ’90s, both President George H.W. Bush and President Bill Clinton ordered bombings in Iraq on their own, in between the Persian Gulf War and the Iraq War.
What Congress can do to reassert itself?
Why it’s been so difficult for Congress to regain its control over war powers
The only two authorizations of military force on the books right now are nearly 18 years old and arguably out of context with everything we’re talking about here. In the years after the Sept. 11, 2001, terrorist attacks, Congress authorized President George W. Bush to battle al-Qaeda.
President Barack Obama recognized this limitation and tried to get Congress to pass a new authorization of military force to allow him to go after the Islamic State, even as he somewhat awkwardly argued he had enough authority under the Bush AUMF. (AUMF is what these things are called in D.C. speak.)
But Obama never got that vote. His request for a three-year authorization of force in Syria got torn apart between liberal Democrats and libertarian Republicans who didn’t want to okay military action in any form, and hawkish Republicans who wanted to give the president more authority than he asked for.
Those factions still exist in Congress today. On the whole, Democrats are skeptical of giving Trump more authority to wage conflict abroad, while Republicans seem okay letting the president take unilateral action. In fact, a number of Republicans commenting about Trump’s Soleimani killing don’t see a need for a new AUMF.
But even if there were a bipartisan consensus that Congress needed to put guardrails around Trump, it is very difficult to get lawmakers to take such a difficult vote, especially in an election year.
They would be on the record authorizing an unknown scale of conflict, for an unknown amount of time. (You can put limitations on AUMFs, but the recent past has shown presidents blow right past those.) Remember when Hillary Clinton’s 2001 vote to authorize the Iraq War helped Obama win the 2008 Democratic primary?
AUMFs also don’t end with administrations. So lawmakers will also be on the record authorizing conflict for presidents other than Trump, as soon as next January. Why would Republicans in particular authorize such expansive powers for a potential Democratic president?
We haven’t even gotten into the nitty-gritty details of how long such an authorization should be for, what countries it should encompass, and what kind of military action it should encompass.
Wrap it all up, and you can see how difficult it is for Congress to do anything to put limitations on Trump as the potential for another conflict in the Middle East escalates, and to enforce its right to know about sustained military conflict before it happens.