As early as this coming week, the U.S. Senate may vote on whether to join the House of Representatives in asserting the rightful role of the U.S. Congress in deciding whether the president is authorized to wage war against Iran.
It’s not looking likely that the Senate will vote on the same bill passed by a bipartisan majority of 224-194 in the House on Thursday because Republicans leadership may not allow this bill to get out of committee. The passage of that bill, H.Con.Res.83, which was introduced by Rep. Elissa Slotkin, was a critical move by Congress at this moment of escalating tensions, making clear that the House doesn’t want more military aggression against Iran.
Senate Republicans should obey the law and bring this up for a vote, as the War Powers Act of 1973 explicitly states that this concurrent resolution is privileged and must be brought to the floor. If not, the Senate will have the chance to vote on Senator Tim Kaine’s Iran War Powers Resolution, S.J.Res.68, regardless.
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A Symbolic Victory in the House or Something More?
The bill passed by the House on Thursday invoked the War Powers Act of 1973 to limit the president’s ability to launch unauthorized war against Iran by forcing him to obtain congressional authorization before taking further military action.
Three Republicans voted in favor of the resolution, including Republicans Reps. Matt Gaetz and Francis Rooney of Florida as well as Rep. Thomas Massie of Kentucky. It was less than many supporters of the bill had hoped for, as a similar provision to the FY2020 Defense policy bill had 27 Republicans vote in support, but it was still a significant statement of bipartisanship in support for congressional war powers.
On the House floor during debate, Rep. Gaetz said, “I represent more troops than any other member of this body. I buried one of them earlier today at Arlington. If our service members have the courage to fight and die in these wars, Congress ought to have the courage to vote for or against them. I’m voting for this resolution.”
Though peace activists have lauded the passage of the bill as historic, there has been a dispute over whether this bill is binding and has the force of law because it is a concurrent resolution, meaning it doesn’t go to the president for a signature and cannot be vetoed. But House Democrats and several legal scholars have argued that concurrent resolutions under the War Powers Act are a special case that hasn’t been tested by the courts yet and should be interpreted as legally binding until the courts explicitly say otherwise. Rep. Ro Khanna has argued that the Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer could be used as precedent for enforcing war powers resolutions, as it was an example of the courts stepping in to allow Congress to limit the powers of the president.
The bottom line is that if Rep. Slotkin’s concurrent resolution were to be passed by the Senate — which is unlikely, considering Majority Leader McConnell won’t bring this up for a vote — then Democratic leadership would argue that the Youngstown Supreme Court case says that it is binding. Republican leadership and the Trump administration might then argue that it is not, citing the Immigration and Naturalization Service vs. Chadha Supreme Court case. Ultimately it wouldn’t bind the president unless Democrats forced the Supreme Court to make a decision.
The Senate Vote Ahead
Now that the House has spoken out, the question of Iran War Powers goes to the Senate, which is expected to vote on Sen. Kaine’s Iran War Powers Resolution either this week or next. Kaine’s resolution was structured as a joint resolution and will not face the same legal criticisms as Rep. Slotkin’s concurrent resolution, since there is no question that a joint resolution can be enacted into law.
In a huge win for the peace movement, Senators Mike Lee and Rand Paul have come out publicly in favor of Sen. Kaine’s bill. After being briefed on the intelligence used to justify Trump’s strike on Suleimani, Sen. Lee said it was, “the worst briefing I’ve seen, at least on a military issue, in the nine years I’ve served in the United States Senate.” He is now an original cosponsor on Sen. Kaine’s resolution.
To get over the hurdle of passing Senator Kaine’s Iran War Powers Resolution, all Senate Democrats need to vote in favor, along with at least four Republicans. Senators Todd Young and Susan Collins have both asked for changes to the text and have indicated that if these are made, they are open to supporting it. The changes include removing any language criticizing Trump for assassinating Suleimani — which would attempt to make this an apolitical war powers issue. Other members on the swing list include Senators Lisa Murkowski, Jerry Moran, Steve Daines, Doug Jones and Joe Manchin, who all voted in favor of the Yemen War Powers Resolution last May.
A Momentous Moment
While we wait for the Senate to act, it’s important to reflect on the importance of this House vote and this moment. The War Powers Act reaffirms what’s already in Article 1, Section 8 of the Constitution and makes explicitly clear where war powers reside – Congress. The law was passed in 1973, not just as a rebuke to President Nixon for bombing Cambodia in secret and the unpopular Vietnam war, but to also ensure that Congress going forward had a mechanism to force votes and debates on where and when we go to war. It’s a welcome sign to see members reasserting a constitutional power that has been left on the shelf to gather dust for decades without use. The House has made it clear that Trump does not have the authority to attack Iran. The House vote also showed that members of Congress are with the American people, who according to recent polling, overwhelmingly want no war with Iran and a diplomacy-based approach for easing tensions.
While we may not have the votes to override an almost inevitable Trump veto should this legislation pass both chambers, it’s critical that Congress force the question. Even if this is not enacted into law, it will help deescalate tensions with Iran, win in the court of public opinion, and set the stage for further congressional action during consideration of defense appropriations and authorization bills later this year. Some legal experts have also argued these votes could be used in a potential Supreme Court lawsuit against the President over separation of powers issues.
After authorizing a $738 billion FY2020 military budget that was stripped of measures preventing the President Trump from starting an unauthorized war with Iran, Congress now has an opportunity to change direction. At a time when we need to address so many issues here at home, from crumbling infrastructure, rising inequality, climate change, and more, it’s absolutely critical for Congress and the American people not to let the president waste trillions of dollars and human lives on a war of choice with Iran. The last thing America or the world needs is another endless war in the Middle East. The House and Senate must pass the Iran War Powers Resolution immediately, uphold their constitutional responsibilities and find a pathway to peace with Iran through diplomacy.