Can Congress check Trump in Iran? It’s given up some of its power to do so.
The Senate’s failure to pass a war powers resolution Wednesday limiting the president’s ability to continue attacking Iran — with a similar outcome expected in the House — represents the latest example of how Congress, in recent decades, has become more of a spectator than a decision-maker in U.S. military operations.
The House plans to vote Thursday on whether to compel President Donald Trump. Lawmakers may have another chance to weigh in on the war, however: The Trump administration is reportedly preparing to ask Congress to approve up to $50 billion in additional funding for the effort. But debates over war powers, experts and lawmakers say, reflect a debate that began with the country’s founding: Which branch of government has the most authority over military conflicts?
The Constitution designates the president as commander in chief of the armed forces. But it gives Congress the power to “declare war.”
Why we wrote this
Some members of Congress want to limit President Donald Trump’s attacks on Iran, with votes coming this week. But lawmakers have been diluting their oversight role for decades, and that history plays a role in the possible failure to pass a war powers resolution by the Senate and House.
Congress has not done so since 1942. Experts agree that in recent decades the institution has ceded much of the decision-making power over war to the president. Many see this as a departure from the founding fathers’ system of checks and balances, although some believe it is more in line with what the founders envisioned.
Clark Neily, senior vice president for legal studies at the libertarian-leaning Cato Institute, says Congress has mechanisms it can use to exert its power. Among them are withholding funds the president needs to take certain actions or, as a last step, voting to impeach a president who oversteps his bounds.
But, he says, the institution must be ready to act.
“When Congress is unwilling or unable to exercise these powers – as ours clearly is – then, regardless of what the Constitution says, there is no real practical limit on the president’s ability to involve us unilaterally in foreign military conflicts,” Mr. Neily said.
The War Power of Congress Over Time
Michael J. Glennon, a constitutional law professor at Tufts University, attributes the decline of Congress’ war power in part to things the Founding Fathers did not foresee: strong political parties and the way members feel pressured to line up behind their party’s president.
“[The Founders] “They believed that members of Congress would have the ambition to resist executive encroachments, because they would have a kind of institutional pride that would trump everything else,” he says. “And it’s not.”
Legislative support for the war currently appears to be collapsing along partisan lines. With few exceptions, Democrats oppose it while Republicans support Mr. Trump.
In the past, Congress has sometimes attempted to reassert its authority in military conflicts.
“In the aftermath of the Vietnam War, we realized,” says Mr. Neily, “that the ambiguity over how the war powers should be divided led the president to assert more control.
In an attempt to regain some of this authority, Congress in 1973 passed the War Powers Resolution, a law requiring the president to notify Congress within 48 hours of a military action and prohibiting the deployment of armed forces for more than 60 to 90 days without congressional authorization.
The law also directs the president to “consult” with Congress “in every possible case” before initiating hostilities.
Although Secretary of State Marco Rubio called some members of Congress to alert them immediately ahead of Saturday’s strikes, many members of Congress — mostly Democrats — say the institution has been circumvented.
Mr. Glennon, who in 1973 provided legal advice to Senate conferences drafting the war powers resolution, says Mr. Trump violated it when he directed strikes against Iran. “Consultation involves approaching Congress to obtain its opinion and advice,” adds the professor.
Mr. Trump and other Republicans have said the 1973 law is unconstitutional.
In recent conflicts, including the Global War on Terror, Congress has passed what is called an Authorization for the Use of Military Force, or AUMF. It is a way of allowing a president to take targeted military action without officially declaring war. In 2002, Congress approved an AUMF authorizing President George W. Bush to send armed forces to Iraq the following year.
In 2011, many Republican lawmakers criticized President Barack Obama’s decision to carry out strikes in Libya without obtaining similar authorization from Congress. The Obama administration argued that these military operations were limited enough that they did not constitute traditional “hostilities.”
Francis Chung/POLITICS/AP
War Powers Resolutions
President Trump did not request an AUMF from Congress when the United States carried out strikes against Iranian nuclear sites last June, or when it captured Venezuelan President Nicolás Maduro in January. In both cases, lawmakers introduced resolutions demanding that the president end military action and await congressional approval. Without sufficient Republican support, they all failed.
Some say these types of resolutions don’t go far enough. Democratic Sen. Chris Murphy of Connecticut called on Congress to block further legislation until members debate and vote on an AUMF for the Iran war. He argues that lawmakers should not only vote to end a conflict, but also to decide whether to start it in the first place.
“If a war powers resolution becomes the way we debate war, then the burden will be shifted forever,” he wrote on social media Monday.
Republican Sen. John Curtis of Utah, who recognizes that Congress has ceded some of its power to the president, on Tuesday called the current situation “a train that has left the station.” He said forcing the president to stop the war at this point would be “devastating” and unfair to American troops, including those who have already lost their lives.
John Yoo, a constitutional law expert at the University of California, Berkeley, doesn’t think wars need to be authorized by Congress before they happen. Instead, he asserts that Congress’s power to “declare war” has more to do with its ability to control military spending, although he acknowledges that many of his peers disagree.
“Congress is of course free to try to stop any military intervention, but I think the Constitution and historical practice require that Congress do that primarily through its purchasing power,” he said.
If Mr. Trump asks Congress to approve additional military spending, he could put this “power of the purse” to the test. His request could face significant obstacles: Even if Republicans hold majorities in both chambers, they will still need a handful of Democratic votes in the Senate to pass new funding.
