By Michael Thompson
Introduction
In February of this year, the Senate passed a joint resolution (S.J. Res. 68) by a bipartisan vote of 55 to 45, ordering President Trump to “terminate the use of United States Armed Forces for hostilities against the Islamic Republic of Iran or any part of its government or military, unless explicitly authorized by a declaration of war or specific authorization for use of military force against Iran.” This resolution’s lead sponsor was Senator Tim Kaine (D-VA), who drafted S.J. Res. 68 in January in the wake of the killing of Iranian general Qassem Soleimani. Eight Republicans joined Senator Kaine and his Democratic colleagues to pass the resolution, though the White House signaled that the President would veto the measure should the House of Representatives pass it. Neither the House nor the Senate have the two-thirds supermajority required to override such a veto (a House resolution in January similar to S.J. Res. 68 passed by a vote of 224 to 194).
The resolution that passed the House in January is a different legal beast than the Kaine resolution. As a concurrent resolution, the January measure only requires passage by a majority in both houses; the president’s signature is not required. However, as Scott R. Anderson and Margaret L. Taylor point out, concurrent resolutions do not “carry the independent force of law” and may rest on an unconstitutional legal theory. The two analysts cite the Supreme Court’s decision in INS v. Chadha which condemned a similar (albeit unrelated) tactic by Congress to circumvent the constitutional requirement that legislation obtain a presidential signature before becoming law. “While Chadha did not directly address the War Powers Resolution,” they write, “it triggered concerns that the existing [procedures for ordering a withdrawal of armed forces] were constitutionally suspect.” In contrast, the Kaine resolution stands on stronger constitutional footing. “Congress responded [to Chadha] by enacting an additional set of expedited procedures—now codified at 50 U.S.C. § 1546a—that allowed for the same outcome using joint resolutions [in the Senate], which are subject to presidential presentment. . . .”
Privileged Consideration for Joint Resolutions via the War Powers Resolution
Section 1546a allows the Senate to essentially fast-track joint resolutions for privileged consideration. It gives the Senate an opportunity to bypass political roadblocks and force debates on resolutions that mandate a withdrawal of American forces engaged in certain hostilities. This is not a mere procedural sleight of hand – it could have important ramifications for Congress’ ability to check executive war-making powers. As Senator Robert Menendez, Democrat of New Jersey, recognized, the passage of S.J. Res. 68 sets a critical precedent.
“First,” he states, “it clarifies that there are no magic words required for privilege.” The Kaine resolution slightly differs from its historical analogues – such as S.J. Res. 7, a resolution ordering the removal of United States forces from Yemen which passed the Senate in 2019—in that it orders the “termination” of the use of American forces as opposed to the “removal” of armed forces. According to Senator Menendez, Republicans in the Senate tried to argue that the phrase “‘remove from hostilities’ was a term of art and that privilege was available only for resolutions that used that specific phrase.” “This [passage of S.J. Res. 68] means,” he explains, “that a resolution that requires the President to stop the use of U.S. Armed Forces in hostilities will not be deprived of expedited consideration in the Senate over semantics.” Moreover, the passage of S.J. Res. 68 “provides a degree of flexibility for Senators who seek to stop such hostilities. For example, ‘terminate’ or other synonyms may be more appropriate than ‘remove’ for certain situations, like cyber operations, where implying a need for or requiring the physical removal of forces may not be practicable or desirable.”
Future Opportunities and Challenges for Congressional Oversight of “Hostilities”
In theory, Congress (or at least the Senate) could use expedited procedures like Section 1546a to force through more legislation restricting the Executive’s use of the armed forces in certain contexts. For example, as Oona Hathaway prescribed regarding the War Powers Resolution as a whole, Congress could re-establish the legal definition for “hostilities” such that it would serve as a constraint against presidential adventurism. It did so in S.R. Res. 7 when it provided that, “For purposes of this resolution, in this section, the term ‘hostilities’ includes in-flight refueling of non-United States aircraft conducting missions as part of the ongoing civil war in Yemen.” Hathaway notes that “[t]his definition of ‘hostilities’ is a far cry from the definition offered by the Obama Administration during the debate over the 2011 U.S. intervention into Libya.” For comparison, in 2011, Harold Hongju Koh, a legal adviser for the Department of State, reasoned that the Administration was justified in not obtaining congressional authorization for using military force in Libya past the statutory 60-day requirement because “as every lawyer recognizes, the operative term, ‘hostilities,’ is an ambiguous standard, which is nowhere defined in the [War Powers] statute.”
But if recent precedent is any indication, any legal challenge to a definition of “hostilities” would quickly fall in favor of the White House, even if the House and Senate mustered the supermajorities needed to override a potential presidential veto. A few years ago, in Smith v. Obama, a former U.S. Army Captain sued President Obama, seeking a declaration that the United States’ campaign against the Islamic State (Operation Inherent Resolve) was illegal because the President did not seek congressional authorization for military action as required by the War Powers Resolution. He argued that the President lacked authorization through the 2001 and 2002 Authorizations for Use of Military Force (AUMF) and that this was a “garden-variety statutory construction case” firmly within the Judiciary’s wheelhouse. The District Court refused to entertain any “statutory construction” of either AUMF because to do so would require the Court to pass judgment on the President’s military decision-making and make “inquiries into sensitive military determinations” based on everchanging intelligence, a matter solely dedicated to the political branches.