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The First Real Legal Challenge To Trump’s Iran War By David Sirota For the first time since the start of the Iran war, Congress has attempted to circumvent President Donald Trump and end the conflict without his approval. In the process, lawmakers took a step toward creating conditions for a first-of-its-kind legal showdown clarifying the legislative branch’s constitutional authorities under the long-standing War Powers Resolution. On Wednesday, the Republican-controlled U.S. House passed a measure ordering the president to “remove United States Armed Forces from hostilities against the Islamic Republic of Iran.” Notably, the legislation was a so-called “concurrent resolution,” which is only required to pass both the House and Senate — and is not subject to presidential veto. Under the text of the 1973 War Powers Resolution, only a concurrent resolution is required to end a war — though the authority of that text remains in dispute. As recounted in a new episode of The Lever’s podcast Master Plan, this particular power has never been tested at the Supreme Court. In the past, Congress has passed joint resolutions that required a president’s signature — and that were subsequently vetoed. If the Senate now passes the same concurrent resolution that the lower chamber just passed, lawmakers could have standing to go to court to request the judiciary enforce the measure under section 5(c) of the War Powers Resolution. That provision declares that any time troops are deployed in hostilities “without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.” “I will work with House counsel to urge leadership to bring a court case to enforce the Iran War Powers Resolution,” U.S. Rep. Ro Khanna (D-Calif) told The Lever. “We must stand up against executive-branch warmaking.” Complicating matters, however, is the case at the center of Master Plan’s recent episode: an obscure 1983 Supreme Court opinion in which justices ruled so-called “legislative vetoes” unconstitutional. For decades, observers have argued that this ruling proves that section 5(c) cannot be invoked. However, the ruling included a concurrence by conservative Justice Lewis Powell, who cited the War Powers Resolution in declaring that the opinion may not apply to all uses of concurrent resolutions. That was echoed by dissenting Justice Byron White, who wrote that the court had not done a “full consideration (of) the constitutionality of other congressional review statutes operating on such varied matters as war powers.” In the 43 years since that ruling, no subsequent case has been brought to the court to test Powell’s hedge and clarify whether Congress retains the unilateral power to stop a president’s unauthorized war. “The constitutional structure the Framers designed placed the power to make war in the institution most directly accountable to the people, and most deliberate in its decisions,” wrote Tufts law professor Michael Glennon, who as a congressional aide worked on the War Powers Resolution and who recently urged the court to clarify Congress’ power to end a war via concurrent resolution. “The Court has the authority and the obligation to restore that design. It is time to do so.” Another complication is whether or not there will even be a vote in the Senate, which has already passed a joint resolution to end the war but has not passed a concurrent resolution to do so. “There’s a quirk in the Senate rules that the minority party can only force a vote on a joint resolution, but not a concurrent resolution,” said Just Foreign Policy’s Erik Sperling, a former congressional aide who has advocated for the use of a concurrent resolution to halt the Iran War. “So unless the Republicans allow a vote on this, there may not be one.” However, the text of the War Powers Resolution declares that if a concurrent resolution is passed by one chamber, it “shall be reported out by (the other chamber’s) committee together with its recommendations within fifteen calendar days” and “shall be voted upon within three calendar days.”
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