J. Scott Applewhite/AP Photo
Speaker of the House Nancy Pelosi arrives to meet with reporters following escalation of tensions between the U.S. and Iran, January 9, 2020, on Capitol Hill in Washington.
In demanding a halt to President Trump’s unilateral war-making against Iran, Nancy Pelosi had a fateful choice to make. She had two ways to call upon the Senate to join the House in imposing stringent limits on the president’s military intervention. One pathway provided by the War Powers Act allows the president to veto these restrictions on his powers as commander in chief; the other does not. Pelosi made the right decision in choosing the veto-proof option. Not only was the veto-proof system of concurrent resolution endorsed by the bipartisan coalition that enacted the provision by overwhelming majorities in 1973. It has a solid foundation in the constitutional text and principles affirmed two centuries earlier in 1787.
Pelosi’s initiative can succeed only if four Republican senators join their 47 Democratic counterparts in approving the House resolution in the coming week. But if this happens, Pelosi should take her case to the Supreme Court and force the newly reinforced group of “originalists” to confront a moment of truth, since there can be no fair dispute that the Founders are on her side.
When the Constitutional Convention met in Philadelphia, its members disagreed about lots of things. But there was no dispute on one fundamental principle. Their new president could not behave in the manner of King George III and launch the country into war without the consent of the legislative branch. After all, the 55 convention delegates had been leaders of a long and bloody struggle provoked by the king’s unilateral war-making, and their grant to Congress of the exclusive power “to declare war” evidenced their determination to establish their republic on a fundamentally different foundation.
After the tragedy of Vietnam, Congress moved decisively to redeem this founding commitment by passing the War Powers Act in 1973. Both Johnson and Nixon had gone far beyond the limits of the Tonkin Gulf Resolution in their bombing campaigns. A broad coalition, led by Republican Senator Jacob Javits of New York, was determined never again to let this happen. The new act set out a series of extremely precise rules aimed at preventing future presidents from making similarly inflated claims about their powers as commanders in chief.
Under its terms, the president could unilaterally respond to an “imminent threat” for only 60 days. If he failed to gain Congress’s explicit approval for his intervention during this limited period, he was required to withdraw American forces within 30 days. As the Senate committee report emphasized, the act explicitly imposes a constitutional responsibility on the president to “obtain specific, affirmative, statutory action by the Congress.” [S. REP. NO. 93-220 (93rd Cong., 1st Sess) at 28 (June 14, 1973).] Moreover, the House and Senate were explicitly authorized to halt the military operation even during this period by passing concurrent resolutions, of the sort proposed by Pelosi. As Javits and other leaders made very clear, it was wrong to allow the president to veto such resolutions if the act was to redeem the founding decision to give Congress the exclusive power to determine when, and whether, “to declare war.”
In his response, Richard Nixon singled out these provisions as “clearly unconstitutional” and vetoed the congressional initiative: “The Founding Fathers understood the impossibility of foreseeing every contingency that might arise in this complex area. They acknowledged the need for flexibility in responding to changing circumstances … [and rejected] rigidly codified procedures.”
Despite these objections, both houses rapidly overcame Nixon’s veto with the necessary two-thirds majorities, and the act became law shortly before the prospect of impeachment forced Nixon to leave the White House.
Trump’s partisans consistently claim that no subsequent commander in chief has taken the act’s restrictions seriously. This is simply false. Not only did Jimmy Carter issue a legal opinion confirming the constitutionality of the 60/90-day framework, but President Ronald Reagan put the act into action when the House and Senate passed concurrent resolutions demanding that Reagan obtain their consent to his military intervention in Lebanon. Rather than trying to veto this initiative, he hammered out a compromise with congressional leaders generating an explicit authorization giving him 18 months to continue his operations before he was required to request another Authorization for Use of Military Force (AUMF). This turned out to be unnecessary, since the troops left Lebanon long before the new deadline.
Reagan’s precedent was reinforced by George H.W. Bush in the run-up to the first Gulf War in 1991. Rather than invoking his powers as commander in chief, he obtained a carefully limited AUMF for the intervention.
During its first two decades, then, the 1973 act’s veto-proof system was demonstrating its success in imposing real-world constraints on presidential unilateralism. Yet during this period the act was amended to provide the alternative pathway—which Pelosi rejected—that allows the president to veto congressional actions. Why was this option added to the law during a period when the no-veto option had proven its effectiveness?
It follows that the key decisions made in 1973 remain the law of the land, and that Pelosi was on solid ground in invoking them.
As I will suggest, the ultimate answer is wrapped in mystery. But the story clearly begins with a Supreme Court decision in a case that had nothing to do with the War Powers Act but nevertheless provoked the crucial amendment. Chief Justice Warren Burger’s 1983 opinion in INS v. Chadha involved the authority of Congress to overrule deportation orders issued to resident aliens by the Immigration and Naturalization Service after its examiners had determined that they were living in the country unlawfully.
In a powerful majority opinion, Burger held that Congress’s job was to make new laws, not supervise case-by-case executive implementation of existing laws. It followed that the Congress had acted unconstitutionally in authorizing House or Senate resolutions to overrule fact-based decisions by the executive branch.
Burger’s reasoning is compelling, but it simply doesn’t apply in the case where the Constitution grants Congress, not the president, the exclusive power “to declare war.” In contrast to the standard scenario, this places the responsibility on the House and Senate to investigate the facts to determine whether an aggressive military response is justified. The drafters of the 1973 act were redeeming this commitment when they refused to allow the president to veto a joint resolution finding that he had exaggerated the extent of “imminent danger,” and ordering him to stop fighting immediately.
Here is where my promised mystery enters. Congress added the veto option to the War Powers Act a few months after Chadha. But there was absolutely no debate on the floor before it did so. Instead, the provision was shoved into an omnibus bill, dealing with a host of other matters, as part of a last-minute compromise 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 doesn’t apply.
Despite its slipshod job, the conference committee did have the legislative authority to add its new procedure as an option. In contrast, it lacked any authority whatsoever to repeal any of the established provisions of the War Powers Act, and it did not do so.
It follows that the key decisions made in 1973 remain the law of the land, and that Pelosi was on solid ground in invoking them. Now that her resolution has been passed by the House, Mitch McConnell has no authority to ignore it, since the act contains a special provision requiring senators to move rapidly to a formal vote on whether they approve of Pelosi’s initiative. Tim Kaine has declared that he will trigger this provision in the coming week. After expressing profound disappointment with Defense Secretary Esper’s confidential briefing, Republicans Mike Lee and Rand Paul have already indicated that they will vote for the House resolution. This means that only two more Republicans need to break ranks to assure its passage. The big question mark is Mitt Romney: Is he really prepared to save Trump in his desperate hour of need?
Your guess is as good as mine. If it turns out that there are 51 votes against the Iranian adventure in the Senate, Nancy Pelosi should take her case to the Supreme Court on an expedited basis. At that point, it will be up to the Court’s “originalists” to tell us whether they will take our founding principles seriously or whether they will simply rubber-stamp President Trump’s grim determination to become a king.
