Earlier this month, the Senate passed a War Powers resolution to cut off U.S. military support for the Saudi-led assault on Yemen. The resolution is expected to pass in the House, but President Trump has vowed to veto the measure as the administration doubles down in its support for the coalition.
Such a state of affairs means those of us working to end the worst humanitarian crisis in recent history need to escalate our tactics. There are many opportunities for potential escalation.
One thing we could do is push to override the veto: We could force the votes on this issue to take place, but doing so is arguably not that much of an escalation if we don’t have a plausible story for how we could successfully find these votes.
Congress Can Pass a Concurrent Resolution
Congress could immediately pass a “concurrent resolution” rather than a “joint resolution.” Under the War Powers Resolution, a “concurrent resolution” to withdraw U.S. forces does not need to be presented to the president and is not subject to presidential veto.
An advantage of the “concurrent resolution” is that it’s a forcing mechanism in the House. If someone in the House wanted to force another vote, a joint resolution could be blocked by the House Democratic leadership, which is reluctant to aggressively challenge U.S. policy in the Middle East. A “concurrent resolution” could not be blocked by the House Democratic leadership.
A disadvantage of the concurrent resolution is that its constitutionality is disputed by some Republicans who are otherwise our strong allies on taking a hard line on Congressional War Powers. Therefore, it might lose some Republican votes if we pursue this route. No court has ever ruled directly on the question of whether this provision of the War Powers Resolution is constitutional. So, if we passed a concurrent resolution, detractors could challenge the resolution, and then we might have to take the issue to court. Which, from the point of view of defending War Powers, would be wonderful. But it would be an obstacle to ending the U.S. role in Yemen war immediately. Further, the outcome is hard to predict.
Congress Can Cut Off the Coalition’s Funding and Weapons
One straightforward thing Congress can do is cut off money for the war in the National Defense Authorization Act and the Department of Defense Appropriations Act, including money for servicing Saudi and United Arab Emirates (UAE) warplanes.
The advantages of this are that it’s very easy for Congress to do once it’s put itself on record against the war, and it’s very hard for Trump to veto the authorization or appropriation for the entire Department of Defense. The limitation is that it’s a slow boat. It’s an opportunity for votes early on, but it likely won’t be enacted into law until the end of the year. Moreover, the symbolism of the early votes won’t sting nearly as much after Congress already voted against the war. Meanwhile, the war in Yemen is ongoing and the famine continues.
Congress can also oppose future weapons sales to Saudi Arabia and the UAE. However, this option has limitations. Saudi Arabia and the UAE already have plenty of U.S. weapons stockpiled, and in general, Congress will only vote on an arms sale once it’s been notified, and thus the administration controls the timing: The administration doesn’t have to notify an arms sale if it doesn’t want to, and the war and famine can go on.
Additionally, only senators can force a vote on an arms deal, the House can only vote if the House Democratic leadership agrees, and there’s no forcing mechanism in the House on an arms deal as there is with the War Powers Resolution, so the House Democratic leadership can prevent a vote.
Once Congress has passed a Yemen War Powers Resolution, the symbolic value of an arms deal vote is significantly diminished. More votes are always good, but they decrease in value once it’s already established that Congress is against the entire war, if they are not perceived to be more escalatory than invoking the War Powers Resolution, which is a big stick.
To be clear: Blocking future arms deals is something that should be done regardless. But in itself, this move might not turn out to be sufficient escalation.
Congress Can Sue the Trump Administration
Another thing Congress can do is sue the Trump administration for violating the Constitution and the War Powers Resolution. This sort of thing has been tried before and has always failed. But the main reason it has failed is that courts have ruled that a handful of members of Congress do not have “standing” to sue in the absence of action by the entire Congress. That position of the courts is cowardly and inconsistent with the intent of the Constitution and the War Powers Resolution, but it would not obstruct us here, because Congress would have taken action.
The idea of a lawsuit should be pursued, but like all options at our disposal, it has limitations. This would be a lengthy process, and we don’t know how courts are going to rule because we’ve never been in this situation before. Further, it’s not much of a popular mobilization strategy; it’s something for lawyers to do. They should do it, and all available and necessary assistance should be offered. But it might not engage the public that much beyond the initial media hit and the final media hit.
Finally, there is the question of impeachment. Let us consider the potential advantages and purported limitations.
The Case for Impeaching Trump
One apparent limitation of impeachment is that it is not a likely path for removing Trump from office because it’s unlikely that there’s a two-thirds majority vote in the Senate to do so. Fifty-four senators voted for the bill introduced by Senators Bernie Sanders, Mike Lee and Chris Murphy; 59 senators voted against Trump’s emergency declaration. Even in the dream scenario where we get all those 59 senators to vote to remove Trump from office, where are the other eight Republican votes going to come from?
For our purposes, the fact that impeachment is not a likely path to removing Trump from office isn’t a bug; it’s a feature. Our immediate goal is not to oust Trump, it’s to end the Yemen war and enforce congressional war powers. Impeachment itself is an extremely painful political sanction for any president that they would seek to avoid, even if it would leave them in office. No president wants to be the third president in U.S. history to get impeached. No president, if they could reasonably avoid it, wants to face a contested impeachment vote in the House. So, if you have members of the House ready to pursue it, it’s a credible threat.
An advantage of impeachment itself is that to begin the process, the House can invoke these powers with a simple majority. Democrats control the House. Every single Democrat voted to affirm that the U.S. participation in the Saudi war in Yemen is unconstitutional and should stop. Therefore, not only is this a decision of the House alone, it’s a decision of House Democrats alone. The jury right now for deciding whether continuing the Yemen war after Congress has passed a joint War Powers Resolution against it is an impeachable offense consists of House Democrats alone and nobody else on this Earth.
A purported limitation of the impeachment strategy is that House Speaker Nancy Pelosi claims that she has “taken impeachment off the table.” The first thing that needs to be said about this is that when it comes to impeachment, it’s not her table. A resolution introducing articles of impeachment concerns the constitutional privileges of the House. It is privileged. It must go to the floor if the sponsor insists. Pelosi cannot block it, except with the acquiescence of the sponsors.
Now of course, the fact that Pelosi cannot block impeachment by herself according to the rules is not the whole story. She is the “leader” of House Democrats, in more ways than one. There are a whole bunch of Democrats who are ready to automatically accept without question the dogma that once Pelosi claims that she has taken an idea “off the table,” it’s indeed “off the table.” Again, this is not actually a bug of our idea; it’s a feature.
If it were easy to get House Democrats to begin impeachment proceedings, then impeachment would likely be about something that the House Democratic leadership cares about, like “Russia, Russia, Russia.” In that scenario, there wouldn’t be much angle to get War Powers into the conversation.
But there are many Democrats who badly want to impeach Trump. Most never had that much of an intrinsic stake in “Russia, Russia, Russia,” but they thought it was the most expedient means to get Trump. These people are leaderless right now, because they think their “leader” in Pelosi just pulled the plug on their impeachment dreams. If impeaching Trump for “Russia, Russia, Russia” has been taken off the table, and someone comes forward with another plausible path to impeach Trump, some of these people might switch horses. For some Democrats, the point is to impeach Trump; the justification is secondary.
This gives us an opportunity now to possibly recruit a bunch of those Democrats to our side. If Yemen War Powers is the only impeachment train leaving the station in the House, then everybody who wants impeachment will have to ride the Yemen War Powers train.
A final advantage of impeachment is this: The threat of impeachment is such a powerful weapon that maybe you could achieve smaller goals just by brandishing it. This has happened in the past, and it happened on War Powers.
The Prospect of Possible Impeachment Worked on Obama
In August 2013, President Obama announced his intention to bomb Syria without congressional authorization. Republican and Democratic members of the House pushed back, signing letters saying: Under the Constitution and the War Powers Resolution, you can’t do that without our authorization. You have to come to Congress for authorization first.
Obama blinked. He agreed to seek authorization from Congress, which he could not get. Then he went for a diplomatic deal instead and gave up the idea of bombing Syria at that time.
For our purposes now, it’s important to recall that Obama got challenged twice on Syria.
According to those who really wanted Obama to bomb Syria, the president did not need congressional authorization and should not have sought it and should have bombed Syria without congressional authorization, ignoring complaints from Congress. That’s the group of people for whom former Deputy National Security Adviser Ben Rhodes coined the term “Blob”: the people in the foreign policy establishment who complained bitterly that Obama refused to bomb Syria without congressional authorization.
When Obama’s presidency was over, Rhodes was asked why the Obama administration didn’t bomb Syria. Rhodes essentially said: A key reason that we didn’t bomb Syria without congressional authorization is that Congress made very clear to us that they saw bombing Syria as an impeachable offense. So if we had proceeded, we faced the prospect of an impeachment fight in the House, and we had other things we wanted to do with our second term, besides spending all of our political capital on an impeachment fight in the House over bombing Syria without congressional authorization.
This example illustrates why the threat of impeachment can’t be taken off the table if you care about war powers. The one recent previous time in history that invoking war powers worked to deter the president was when the threat of impeachment was on the table.
This suggests the idea of trying to explicitly put the threat of impeachment over war powers on the table without immediately taking the step of introducing an article of impeachment. Here is a proposal for doing that: Let a House member prepare a statement in anticipation of the House vote on the Sanders-Lee-Murphy bill on Yemen threatening that, “If President Trump vetoes the Sanders-Lee-Murphy bill and continues the war, I will introduce an article of impeachment on unconstitutional war and force a vote in the House.”
That is: “We could do this the easy way, or we could do it the hard way.”
This is win-win, because the threat of the impeachment fight over unconstitutional war might deter Trump from vetoing the bill and continuing the war. If Trump nonetheless vetoed the bill and continued the war, that would establish the case for introducing the article of impeachment and forcing the vote.
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