War Powers: An Overview

The following essay outlines the issue of war powers to explain the recent actions Congress has taken to reassert itself regarding the United States’ use of military force abroad. Arab Center Washington DC (ACW) has previously published a more thorough piece examining the issue, so this will be a truncated explanation of the important aspects.

“War powers,” as the name implies, are simply the government’s authority to declare and conduct war. Due to the nature of the US Constitution, that responsibility is divided between the executive and legislative branches, with the latter having the sole authority to declare war while the former is responsible for conducting the war. For much of the country’s history, the legislative branch has ceded more and more war power authority to the executive branch until 1973, when Congress passed the War Powers Resolution to try and reinsert itself back into the war-making process. Under the law, members of either chamber of Congress can introduce a resolution that, with enough support, would force the administration to withdraw US forces from hostilities not formally authorized by Congress.

It is under this law that Congress has operated in response to the administration’s escalating actions toward Iran. Senator Tim Kaine (D-Virginia) has invoked the War Powers ResolutionS. J. Res. 68and he says he has garnered 51 votes in support of the resolution, enough to pass through the Senate. As a joint resolution, it would then go to the House of Representatives and, if it passes, to the president’s desk for his signature into law or a veto. President Donald Trump will almost certainly veto the measure and there is no indication that either chamber has the numbers to override any veto.

It is under this logic that House Democrats likely pursued the path of introducing and passing a concurrent resolution—a measure that is nonbinding and does not have the force of law like its “joint resolution” counterpart. They did this despite the fact that House progressives introduced a joint resolution along the lines of Senator Kaine’s original joint resolution. The nonbinding nature of the measure—and its Senate counterpartactually drove some House Democrats to oppose the measure.

The debate over war powers has long been fraught with uncertainty, however. Since its passage in 1973, every president has argued that the law is an unconstitutional infringement on the executive branch’s constitutional authority. The issue has yet to be settled by the judiciary. Furthermore, there is no reason to believe that members of Congress could realistically force the president to do as they say if he were to refuse to withdraw US forces. Therefore, with that in mind, other lawmakers have introduced additional proposals to stop a potential war with Iran. Senator Bernie Sanders (I-Vermont) and Rep. Ro Khanna (D-California) have teamed up to offer legislation that would prohibit the federal government from spending any money to wage a war against Iran; the idea is that because a war is expensive, the inability to finance one would ensure it does not start. In addition, Rep. Barbara Lee (D-California) has angled to secure a vote on a measure to repeal the 2002 authorization for the use of military force (AUMF) against Iraq. Even when presidents assert that they can use military force abroad with discretion, administration lawyers always try to find legal justifications for these acts. In the case of the assassination of the Iranian general, Qassem Soleimani, the administration cited the 2002 AUMF as its legal justification, so Lee wants to strip the president of at least one authority it has used to justify belligerent action abroad.

Also Happening This Week in Washington

I. Congress

1) Legislation

Recognizing the 40th Anniversary of the Iran Hostage Crisis. On January 8, the Senate voted to adopt S. Res. 395, a resolution that recognizes the 40th anniversary of the Iran hostage crisis when Iranian revolutionaries held US citizens hostage for over one year.

United States-Israel Security Assistance Authorization Act. Senators Marco Rubio (R-Florida) and Chris Coons (D-Delaware) introduced S. 3176 on January 9. The bill—a proposal identical to language from 2019’s S. 1—would codify some of the details of US assistance to Israel as outlined in a memorandum of understanding agreed to in 2016. Should the bill become law, it would guarantee that Israel receives $3.3 billion in security assistance every year until the end of fiscal year 2028.

Honoring the Members of the Armed Forces and the Intelligence Community Who Were Involved in the Killing of Qassem Soleimani. Members of both the House and Senate introduced resolutions this week expressing support for the military and intelligence community personnel who oversaw the mission that killed Qassem Soleimani. S. Res. 466 and H. Res. 783 were both introduced and supported only by Republicans and it is likely that Democrats will refrain from supporting them, should either come up for a vote.

Condemning the Actions of the Government of Iran and Supporting the Protesters in Iran. As the leaders of Iran again confront popular protests, House Minority Leader Kevin McCarthy (R-California) introduced H. Res. 791 to condemn the regime’s response to those protests. In addition, McCarthy tried to strike a tone of solidarity, saying the House “supports the protesters in Iran, their demands for accountability, and their desire for the Government of Iran to respect freedom and human rights.” According to McCarthy, though, his Democratic colleagues blocked a vote on his resolution.

In the Senate, Marco Rubio (R-Florida) introduced a similar resolution, S. Res. 469, to demonstrate support for Iran’s protesters.

Israel Anti-Boycott Act. This week Rep. Lee Zeldin (R-New York) introduced H.R. 5595 which seeks to impose “additional prohibitions relating to foreign boycotts.” This refers to decades-old legislation that was meant to protect US companies from being forced to choose between conducting business with Israel or with the countries of the Arab League that organized a boycott against Israel. However, the bill looks to amend the Export Control Reform Act to include language much like that found in previous versions of the Israel Anti-Boycott Act that prohibits US entities from cooperating with what lawmakers consider a UN-backed boycott of Israel. (In reality, the UN Human Rights Council simply passed a resolution calling on the creation of a database that lists the business entities operating in the occupied West Bank.) ACW explored some of the concerns raised about this bill when it was introduced during the last Congress (see here and here), but ultimately civil liberties activists argue that legislation of this kind violates citizens’ rights to participate in boycotts, which are protected by the Constitution’s First Amendment.

Encouraging Public Schools to Design and Teach a Curriculum about the History of Anti-Semitism. Rep. Ted Budd (R-North Carolina) and two GOP colleagues introduced H. Res. 782 that urges public schools to teach about the history of anti-Semitism, the Holocaust, and “the vital and historic importance of the Jewish State of Israel.” According to the resolution’s text, the congressmen seek to condemn rising anti-Semitism that they say is demonstrated by the host of violent attacks on Jewish communities around the country as well as by peaceful protests like the Boycott, Divestment, and Sanctions movement.

Supporting the Commitment of the United States to Lawfully Protect International Cultural Sites. After President Trump vowed to destroy Iranian cultural sites in retaliation for any further escalation in the US-Iran conflict, Congressional Democrats have gone on the record to show their opposition to what international law considers war crimes. Last week Senator Ed Markey (D-Massachusetts) introduced a resolution condemning Trump’s remarks and this week, the chairman of the House Foreign Affairs Committee (HFAC), Eliot Engel (D-New York), introduced a measure ensuring that it is the sense of Congress that the United States is not prepared to violate laws of war and destroy historic cultural sites.

2) Hearings and Briefings

US-Iran Tensions Rising with Iraq in the Middle. On January 9, the Atlantic Council hosted Senator Chris Murphy (D-Connecticut) and Rep. Seth Moulton (D-Massachusetts) for a discussion about recent developments in Iraq, increasing tensions between the United States and Iran, and the administration’s policy goals for de-escalating tensions. Both lawmakers criticized the administration’s decision to assassinate Qassem Soleimani and decried what they saw as a nonsensical, even counterproductive, strategy toward managing the threats Iran poses. As for Iraq, both Murphy and Moulton expressed support for a limited US military presence in the country to continue to help and support Iraqi security forces, but argued that the administration’s approach—like threatening to sanction Iraq if US troops are asked to leave—is turning Iraqi sentiment against US forces.

From Sanctions to the Soleimani Strike to Escalation: Evaluating the Administration’s Iran Policy. On January 14, the House Foreign Affairs Committee held a hearing to assess the nature of the administration’s current strategy toward Iran. Committee members extended an invitation to Secretary of State Mike Pompeo, but he refused to attend and the administration did not send anyone else to testify in his stead. Without the administration there to defend its positions, the hearing presented little new information. However, it was clear that there remains a partisan divide in Congress, with Democrats largely criticizing the administration’s policy and Republicans praising it.

Rep. Ted Lieu Discusses Congress’s Role in Arms Sales. On January 14, Rep. Ted Lieu (D-California) appeared at a conference called “Beyond the Headlines: Redefining Responsibility in the Arms Trade.” Lieu used his keynote address to criticize the United States’ longstanding role in facilitating arms trade to Saudi Arabia. He noted that arms sales to Riyadh did not start under the Trump Administration and that, in fact, the president was first spurred into taking action in response to events during the Obama Administration. As the Yemen war became more catastrophic and the Trump Administration grew more unconditionally supportive of the Saudis, Lieu said he and his colleagues decided it was time to rein in the administration’s abilities to sell arms to actors like Saudi Arabia. In practice, Lieu said his two aims are to pass legislation that would allow the House to vote to prohibit any single arms sale (as the Senate already has the power to do) and to use his position on the HFAC to strengthen oversight of the arms trade.

3) Personnel and Correspondence

Progressives Rally Against Escalating Tensions with Iran. As Washington seemed closer to an open conflict with Iran, progressives on Capitol Hill rallied in opposition to any potential war between Washington and Tehran. The House’s Congressional Progressive Caucus held a press conference regarding the situations with Iraq and Iran and, the following day, Senator Sanders and Rep. Khanna led a bicameral progressive press conference to announce they were introducing their aforementioned legislation.

Rep. DelBene Leads Letter Inquiring about Detentions of Iranian-Americans. After the assassination of Qassem Soleimani, the Department of Homeland Security reportedly began detaining Iranian-Americans and Iranians who had legally entered the United States for extra questioning as they attempted to return to the country. In response, Rep. Suzan DelBene (D-Washington) and a number of House Democrats wrote to the acting commissioner of Customs and Border Patrol seeking answers to questions about the agency’s practices toward people of Iranian background.

Congressional Democrats Write to Trump about Avoiding Iran War. Senator Ed Markey (D-Massachusetts) and Rep. Ro Khanna (D-California) led a bicameral coalition of Congressional Democrats in calling on President Trump to rethink his current strategy toward Iran.

Republican Senators Ask Department of Justice to Investigate Nonprofit. This week, Republican Senators Tom Cotton (Arkansas), Ted Cruz (Texas), and Mike Braun (Indiana) wrote a letter to Attorney General William Barr asking the Department of Justice to explore whether it is necessary to investigate the National Iranian American Council (NIAC). The senators claim that NIAC may be violating a law known as the Foreign Agents Registration Act for allegedly “conducting lobbying and public relations activities in coordination with or on behalf of the government of the Islamic Republic of Iran” and not reporting such activities as required by law. Many observers have decried the lawmakers’ efforts as modern day “McCarthyism.”  

II. Executive Branch

1) White House

Trump Speaks with Israel’s Netanyahu. On January 8, President Trump and Israeli Prime Minister Benjamin Netanyahu spoke on the phone about regional developments. Netanyahu has been in close contact with Trump and US cabinet officials since tensions between the United States and Iran started rising, so it seems likely that the administration is coordinating its regional policies with Israel even more than it might have in the past.

Trump Administration to Send Delegation to Oman. The White House has finalized the makeup of its delegation that will travel to Oman to pay respects on the death of Muscat’s Sultan Qaboos bin Said Al Said. However, except for one cabinet member—the secretary of energy—the delegation comprises mostly lower-level State Department officials. Oman and the other international delegations will likely notice that Washington dispatched a group of officials who are relatively lower level in the US government.

2) Department of State

Assistant Secretary Schenker Travels to Iraq, UAE. This week, Assistant Secretary of State for the Bureau of Near Eastern Affairs David Schenker traveled to Iraq and the United Arab Emirates to discuss the US posture as tensions between Iran and the United States escalated. In a later press conference, Schenker made a point to stress that Washington is not interested in war with Iran and that the administration seeks to de-escalate tensions between the sides.

Pompeo Continues Outreach to Foreign Officials over Iran. Secretary of State Pompeo continued to call and meet with a number of foreign officials to discuss ongoing developments with Iran. Since last week he has spoken with the French foreign minister, Turkish foreign minister, British foreign minister, Canadian foreign minister, UN secretary-general, Israel’s prime minister, and the secretary general of the North Atlantic Treaty Organization.

In addition, Pompeo held discussions with regional leaders on topics beyond Iran. He spoke with Iraqi Prime Minister Adel Abdul-Mahdi about the future of the US-Iraqi military partnership. Afterward, the State Department issued a press statement essentially telling the Iraqi government that the US military is not departing Iraq, despite some Iraqis’ desire to see the United States expelled from the country. Lastly, Pompeo spoke with Oman’s foreign minister to offer his condolences on the passing of Muscat’s longtime leader, Sultan Qaboos.

Secretary Pompeo, Ambassador Friedman Discuss US Posture toward Israel and the West Bank. This week Secretary Pompeo, via a recorded message, and US Ambassador to Israel David Friedman delivered remarks before a policy forum in Jerusalem. Pompeo reiterated the administration’s belief that Israeli settlements do not run afoul of international law and he said that they are now “disavowing” a 1978 memorandum that first put the United States on the record as viewing these settlements as illegal under international law. Friedman explained that the Trump Administration’s stated policy is now that “Israelis, Jews have the right to live in Judea and Samaria,” the nomenclature the Israeli government uses for the West Bank. Friedman went on to say that the administration’s position does not state that Palestinians do not have a right to live in these areas as well, but that the land is ultimately up for negotiation—despite the fact that the international community has long held that the West Bank should become part of the state of Palestine.

Assistant Secretary Fannon Travels to Abu Dhabi. This week, Assistant Secretary of State for Energy Resources Francis Fannon traveled to the UAE to meet with government officials, business leaders, and members of civil society about regional energy security. Fannon also led a delegation at two forums focused on regional and global energy developments.

Under Secretary Hale Meets with Sudanese Foreign Minister. Under Secretary of State for Political Affairs David Hale met with Asma Abdalla, the Sudanese foreign minister, this week. They discussed Sudan’s political transition, economic reform, and potential peace talks between Khartoum and armed rebel groups. They also addressed the ongoing conflict in Libya and ways that Sudan—which is one of the Arab parties that has mercenaries propping up Libyan fighters—can help implement the UN Security Council resolution aimed at ending the war.

Ambassador Jeffrey Travels to Turkey, Saudi Arabia. During January 9-13, Ambassador James Jeffrey traveled to the region to discuss issues relevant to Syria and the coalition to defeat the Islamic State (IS). First, he traveled to Turkey to meet with Turkish officials and members of the Syrian opposition about bringing the Syrian conflict to an end, then he went to Saudi Arabia to meet with officials about efforts to stabilize Syria, especially the areas liberated from IS.