Jon Gambrell/AP Photo
An F-18 fighter on the deck of the USS Abraham Lincoln in the Persian Gulf, June 2019
Last Thursday, the Senate joined the House in passing a resolution dramatically restricting President Trump’s military campaign against Iran. The action by both chambers of Congress now forces a fundamental constitutional question to the fore: Does Trump have the constitutional authority to veto Congress’s command?
The president’s lawyers will predictably say that the Supreme Court has already answered this question with an authoritative Yes.
They are mistaken. In fact, neither Congress nor the Court has squarely confronted the veto issue during the past half-century. But it must be seriously debated when the final version of the Iranian war powers resolution returns to the House and Senate for floor votes in the coming weeks.
If the resolution once again gains majority support and Trump issues a veto, Nancy Pelosi will be in a position to make the next critical move. As Speaker of the House, she will have standing to require the Supreme Court to confront the veto issue. The answer it gives will profoundly shape the conduct of military operations for decades to come.
To see why, begin with the president’s argument for his veto authority. It relies on a 1983 decision by the Supreme Court, Immigration and Naturalization Service v. Chadha, which is indeed a constitutional landmark in defining our separation of powers.
Yet Chadha raised a different problem from the one posed by the Iranian resolutions. Rather than dealing with matters of war and peace, it involved an executive branch decision to permit an individual to remain in the United States despite overstaying his visa.
Congress was unwilling to give the administration the final say on such matters. Instead, the House and Senate asserted their authority to pass resolutions reversing good-faith executive efforts to carry out current laws.
In a powerful majority opinion, Chief Justice Warren Burger declared that both chambers had crossed a constitutional red line. On the Court’s view, Congress’s job is to make new laws, not overrule the administration’s implementation of existing statutes. If the current House and Senate don’t approve of the pattern of decisions emerging from the executive branch, they should pass a new statute, giving agencies new marching orders. Yet the Constitution explicitly requires that any legislative initiative must be presented to the president, who can veto it and require two-thirds majorities to override his objections.
Burger’s reasoning is compelling, but it simply doesn’t apply to the use of military force. In this area, the Constitution explicitly grants Congress the exclusive power “to declare war.” Even if the president asserts that a foreign power is a clear and present danger, the Founders gave Congress the authority to determine that the commander in chief is wrong on the facts, and that he should not undertake an aggressive military response. In contrast to the problem posed in Chadha, it is up to Congress, not the president, to find the facts and make the final call.
The Philadelphia Convention did not make this decision lightly. While delegates disagreed about a lot of things, they had been leaders of a bloody revolutionary struggle provoked by King George III’s unilateral war against the American colonies despite the opposition of the House of Commons. The Constitution’s exclusive grant of war-making power to Congress expressed the Founding generation’s collective determination that their new president would never be a king.
The framers’ original understanding was badly battered over the course of the next two centuries—which is precisely why Congress passed the War Powers Act of 1973 to reaffirm the Founding commitment. A broad bipartisan coalition, led by Senator Jacob Javits, was responding to the disastrous outcome of the Vietnam War. During the course of this conflict, Lyndon Johnson and Richard Nixon had engaged in massive bombing campaigns that blatantly violated the limited war-making authority granted to them by Congress in 1964.
In trying to prevent future presidents from such tragic abuses of power, Congress was perfectly aware that the country’s military position had radically changed since 1787. Given America’s commitments to NATO and other alliances, the act recognizes that it would sometimes be necessary for the president to take unilateral action in response to an “imminent threat.” But it explicitly authorized the House and Senate to call an immediate halt to further military operations if they considered them unwise.
The House exercised this authority to issue a “concurrent resolution” ordering Trump to cease his military provocations in Iran. But the Senate’s recent resolution took a different form, deploying a method added to the statute shortly after Chadha was decided. In contrast to the 1973 act, this amendment authorized the two houses to issue “concurrent resolutions” of a type that could be vetoed by presidents. In doing so, however, Congress did not revoke the original 1973 provisions.
It would be nice to know why this either/or approach was chosen. Unfortunately, there was absolutely no debate on the floor of either the House or the Senate exploring the reasons for the change. Instead, the revision suddenly appeared in an omnibus bill, dealing with a host of other matters, advanced by a joint House-Senate conference committee. The legislative history simply cites Chadha without explaining why its rationale should be expanded to a case where it does not apply.
Since 1983, the issue has been left in limbo as presidents of both parties increasingly exercised unilateral war-making powers in defiance of the act. But now that the House and Senate have taken different routes in their Iran resolutions, the veto question can no longer be avoided. It will be the job of a joint conference committee to present a veto-proof “concurrent resolution” or a veto-able “joint resolution”—or both—for another round of voting in each chamber.
As their actions on Iran have already shown, senators and representatives are increasingly mindful of their responsibility to reclaim their ultimate authority over war and peace. It is perfectly possible that, after a sustained debate, bipartisan majorities will endorse the veto-proof resolutions contemplated by the framers of the 1973 act.
If they do so, however, they should be prepared for a characteristic Trump response. Rather than heeding the congressional command, he will issue a veto and order the armed forces to continue preparing for further Iranian interventions.
Assuming he does, Pelosi should be preparing herself to respond to an escalating constitutional conflict with a veto-insistent Trump. As Speaker of the House, she unquestionably has standing to appeal to the Supreme Court to serve as the ultimate arbiter on this fundamental question.
The Roberts Court will then confront a fateful choice. If it refuses to decide Pelosi’s challenge on the merits, the Joint Chiefs of Staff will have to determine whether Trump’s orders are consistent with their oath to “support and defend” the Constitution.
Despite the Court’s understandable reluctance to intervene, both conservative and liberal justices will be unwilling to leave it to the military to decide whether the Constitution requires them to obey Congress or the president on such a fundamental matter.
Once the justices reach the merits, however, the newly reinforced “originalist” wing of the Court will face a moment of truth. Will they vindicate the current effort by House and Senate to reinvigorate the Founding system of checks and balances, as adapted by the War Powers Act, to meet the military challenges of the modern world?
