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The truth is, all these statutes, and particularly the WordPress resolution, may be a little more vulnerable than others have. All statutes have kind of required interpretation to be understood. The question is, you know, who gets to interpret and how stable do those interpretations need to be?
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B
I'm Natalie Orput, executive editor of lawfare, with my colleague, Lawfare's Senior editor, Scott R. Anderson.
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But all of these kind of nuances, while there's a lot of inconsistencies with the Trump administration is doing, they don't always matter that much because the only entity whose view of the War Powers Resolution matters right now is the executive branches.
- [02:58]
B
Today we're talking about the War Powers Resolution, the law that's supposed to limit the president's power to wage war and what it means for the US Conflict in Iran. So we are here to talk about the US War in Iran from a very specific angle, which is how US Domestic law comes into play. And specifically, we're talking about the War Powers Resolution, which you recently wrote about in an article we published in Lawfare. We are at a moment of particular interest to the War Powers Resolution, because according to the Trump administration, we have recently completed Operation Epic Fury, and we have purportedly separately and potentially unrelatedly started Project Freedom. So we will get back to what those things mean factually and how it relates to the War Powers Resolution in a bit. But can you just start by telling us what is the War Powers Resolution and what does it say?
- [03:58]
A
Absolutely. So the War Powers Resolution is a statute enacted by Congress in 1973, enacted by a supermajority of Congress that overrode Ovido by President Nixon in an effort to, as described by the sponsor of the legislation, to kind of recalibrate the roles of the political branches in matters of war and peace and specifically to kind of give Congress more of a voice, more of a role in decisions regarding the use of military force. This is all being done, of course, in the aftermath of the Vietnam War and related hostilities in Cambodia and elsewhere, Southeast Asia, that were a frequent point of contention between the Nixon administration and Congress over the course of several years, in the many decades since the War Powers Resolution has been enacted. It's just over 50 years old now. It's come under a lot of criticism, mostly in that it's ineffective, that people argue, well, look, the statute has really become a bit of a dead letter. Presidents routinely disregard it or interpret around it in a way that don't make it very effective. There's a lot to those critiques, but I also think they sometimes understate the extent to which the War Powers Resolution actually has had an impact in tempering some of the executive branches potential moves it could make, some of the discretion it could exercise in the absence of the War Powers Resolution, and particularly that it has at other points in the 20th century prior to its enactment, and so gets a little bit of short shrift. And in a lot of ways, frankly, the debate over the Iran conflict actually, I think, is a very useful. If we step back a little bit and view it from more academic lens, it's a useful sort of case study in how the dynamics around the War Powers Resolution operate in this particular historical moment.
- [05:45]
B
Okay, great. So I think you've made a good pitch for why we should care about this right, which is that it really does speak to a fundamental piece of the balance of powers in the United States and comes out of this historical moment where the very strong sense in Congress, as you said, a supermajority in Congress thought that things were out of whack and the President had too much power. I think that will resonate with people right now because of the many realms in which the current administration is asserting very strong interpretations of executive power. But let's focus now on what the resolution actually says. It's trying to, as you say, restrict the powers of the President, retain some powers to Congress to make determinations about when it is appropriate to commit U.S. military troops to the use of force. How does it try to get there to accomplish that goal?
- [06:43]
A
The War Powers Resolution really does a lot of different things, but the provision that is most relevant to the Iran debate, in a lot of ways it's the core or one of a handful of core operational operative provisions. The War Powers Resolution is what's generally known as the 60 day clock. This is a time limit the War Powers Resolution puts on the President's authority to use military force. The War Powers Resolution doesn't outright bar the President from using military force on his own authority. It doesn't endorse it either. But it kind of acknowledges that something that might happen, rightly or wrongly. What it does say, however, is that a, and this is in Section four of the War Powers Resolution. It says that where the President introduces US Armed forces into hostilities or and this is important, into situations where imminent involvement in hostilities is clearly indicated by the circumstances, basically meaning or there's a good chance you'll end up in hostilities. The President's supposed to file a report with Congress within 48 hours and then 60 days after that report is filed or after it's due, whichever is earlier, the President is supposed to terminate the use of those armed forces in the situation that gave rise to that obligation to file that report, unless Congress has authorized the use of military force or there's certain other contingency that has a contingency for it, for example, Congress is unable to meet. And then notably it actually, and this is all I should say, that latter cutoff Provision is Section 5B of the War Powers Resolution. It also says that the President actually has the option to extend the 60 day window, kind of a 62 day window, because you kind of get the first 48 hours before the reports officially do to extend that by an additional 30 days. If the President's willing to certify to Congress in writing that it's necessary basically to ensure troop safety over the course of their removal from hostilities. But in this case, the president has not invoked that extension. So we're really, we're Talking about a 60 day, not a 60 to 90 day cutoff at this particular point.
- [08:46]
B
Okay, great. So let's unpack those two separate provisions by looking at what's been going on with this conflict or purported conflicts in Iran. So with respect to the notification requirements, you must file a report within 48 hours of introducing into hostilities or introducing into situations where there might be imminent hostilities. That provision, Section 4. Did the Trump administration notify Congress within 48 hours as it was required to do when we first went to war with Iran?
- [09:24]
A
It did, or it got very close, at least on March 2, it filed a report with Congress that's since been released to the public, as these reports often but not always are, that essentially says we have started targeted military operations against Iran. And then it explains the, the logic behind them and kind of says we don't know how long they're going to last or what they're going to consist of. We know now that it was pretty significant from the outset. Notably, that letter says it's being consent to Congress consistent with the War Powers Resolution, but doesn't specifically say is being provided under section 4A1, which is a little bit notable because in the past, prior presidential administrations have sometimes tried to be ambiguous as to whether it's submitting a 48 hours report to Congress under 4A 1 or 2, or under one of the other provisions of 4A, which also require 48 hour reports. But don't start the 60 day withdrawal clock or termination clock. And so, you know, in theory, keeping that ambiguity, that could have allowed them to preserve an argument saying, yeah, we filed that report consistent with the War Powers Resolution, but it wasn't a 4A1 report. So we're not subject to a 60 day cutoff provision. Notably, though, the Trump administration doesn't appear to have decided to make that argument or lean on that argument. And it'd be a hard argument for it to make really, given the scale of armed conflict that the United States and Iran were in for much of the ensuing weeks after that February 28th date when the military activities commenced. Instead, in a letter President Trump provided to Congress last Friday, May 1, which is the end of the 62 day period, so the end of the 68 clock plus the 48 hour notification window, it acknowledged that there were hostilities that continued that started on February 28, but essentially said that those hostilities have ended as a result of the ongoing ceasefire and therefore specifically it says they have terminated. And that use of termination I don't think is a coincidence. It's very clearly saying the requirements of the 60 day clock have been met.
- [11:30]
B
Okay, so just to drill down on one piece that you said, there are other parts of the statute that require notification. And so it appeared like it might be the case that because the notification letter that the administration sent in April didn't specify that it was under section 4, they could have theoretically, as previous administrations have done, been arguing that. Yes, but this was a notification, but it was a different sort of notification. What are the other parts of the statute? What sorts of things are they notifying for? And how does it, as you said, not seem to be the case that the current hostilities would fit within those rubrics?
- [12:10]
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Well, the use of the language hostilities, the fact that the May 1 letter basically concedes hostilities started on February 28 is an indication that it is acknowledging a 4A1 situation. 4A1 applies whenever troops are inserted into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances. So if you're saying there were hostilities and US forces were there, that's a 4A1 situation. The other possibilities are 4A2 and 4A3. They essentially require 48 hour reports where the President deploys US troops when equipped for combat into the territory, airspace or waters of a foreign nation, where there are some exceptions for training and supplies and missions and stuff like that, or if the President substantially enlarges the number of troops already deployed in a particular area, that's sub prong three. You know, in theory, maybe you could have seen A report under 4A2, for example, when they, you know, send military forces, if they were to send them into Iranian territory or waters. But at the point where you can see there are ongoing hostilities, it's hard to argue this isn't a 4A1 situation. Notably, Congress actually amended these reporting requirements in 2023 through an amendment to the NDAA to add an additional 48 hour reporting requirement that basically says any use of force by US Military forces, whether offensive or defensive, needs to be reported to Congress if it's not already being reported under one of the existing three prongs of 4A of the war Powers Resolution. And this is a bit of a housekeeping exercise, I think, by Congress to say we want to know if there's an exchange of fire, if there's other sort of hostile incident involving US forces, even if you might be able to technically read four A1, 2 and 3 to not require it. Compliance with that new reporting obligation is something that's a little unclear to me in part because while the 4A 1 and generally 4A reports are traditionally made public, usually on the WhiteHouse.gov website and they're kind of assembled with other presidential documents and submersible into presidential archives, it's not clear to me 100% whether that's happening yet or not with these new type of 48 hour reports. So compliance with them is a little bit of an open question and not something I've been able to chase down.
- [14:24]
B
That's interesting. And at the very least, it's a good reminder that it wasn't just a 1973 Congress that cared about restricting the President's ability to keep troops engaged in hostilities. It was actually much more recent than that that Congress continued to demonstrate that it cares. So let's switch, as you said, to taking as an assumption, including because of how the administration has acted since filing its notification after 48 hours that it was intended to be for the purpose of 4A such that it triggered the 60 day limit. Let's switch over to that provision, section 5B, I believe. So that's the 60 days. 60 days even specifies 60 calendar days is pretty clear. But the rest of that provision is, I would say, decidedly not clear and a lawyer's dream in terms of ability to argue what terms should mean. So you previewed this a little bit. The terminology is introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances. So talk to us about what has been going on with respect to this 60 day deadline that, as you say, has terminated or has passed. And yet the Trump administration is continuing to say that it is in compliance, has not blown the 60 day deadline, is not trying to invoke the additional 30 days that it has as sort of a safe harbor under that same provision, but is rather saying, no, no, we are in compliance with the 60 days. Tell us a little bit more about what they are arguing in that vein.
- [16:15]
A
Sure. So section 5B says the President and directs the president to terminate any use of US Armed forces in regards to a situation that gave rise to the obligation to file a 4A1 report. And then in 4A1, that's where that has the language you're citing, which is hostilities or a situation where hostilities, imminent hostilities are suggested by the circumstances. I'm paraphrasing, so I have it directly in front of me, those two Situations. It really comes down to that core question of hostilities and what does this mean? The legislative history of the War Powers Resolution very clearly suggests that the authors of it change from, I believe it was originally armed conflict in some earlier drafts to hostilities because they wanted to capture a broader concept of what would be entailed by these sorts of obligations. And they also had exchanges with the Executive Branch, most notably in 1975, asking them, how are you interpreting this? How should we understand Executive Branch practice around this term? And they said, basically, okay, well, we interpret hostilities to mean actively shooting a risk or a substantial risk of coming under enemy fire and circumstances where suggesting imminent hostilities, essentially circumstances suggesting there is a serious risk there. The Executive Branch has been kind of on the books about that. But over the subsequent five decades or so of practice, we've seen the Executive Branch tweak that conception of hostilities and flex it in ways that are designed to permit certain types of military operations to continue past the 60 day mark on the logic that they don't constitute hostilities and Therefore neither trigger 4A1 obligations and then do not give rise to the 60 day clock. The Trump administration notably actually isn't leaning on this for Operation Epic Fury. Again, its May 1 letter says Operation Epic Fury was hostilities. Doesn't say that quite expressly, but it's clear. It says, February 28th we started hostilities with Iran. And then it just says those are over as of the ceasefire that started on April 7, because there's been no exchange of fire with Iranian forces since then. That actually has ceased to be true since May 1st, but it was true evidently up until May 1st. So they said essentially this period has ended. Instead, what this appears to be to me is something like what's often known as the intermittent hostilities argument. This is the idea that, well, you can have different periods of hostilities with the same enemy force that should be distinct and subject to their own distinct 60 day clock. The clearest most recent example of this we have is the Biden administration targeting Iran backed militias in Iraq and Syria. Each time that happened, which the Biden administration did under The President's Article 2 authority without statutory authorization, at least a half dozen times over the first few years of the administration, the President would file a new 4A1 report and say, hey, we just took this military action, but each time treated it as a different incident of hostilities with its own 60 day clock to start clocking down, which would then restart if there was another incident of hostilities there. There. The Biden administration was able to do that because they were sort of freestanding incidents. And each time they could, at least colorably, although people definitely criticize them for this, suggest that what we're hoping this will never happen again. This is non repeatable. This is a one military response to usually an attack by these forces on US Diplomatic or military presences. But that's a harder case to make here because obviously the Trump administration's posture has still been we can and very well may begin hitting Iran at any given moment. President Trump has said that expressly. So it's a little bit different here. But nonetheless, that seems to be the sort of argument that the Trump administration assertion that hostilities ended at the time of the ceasefire is meant to set up.
- [19:56]
B
Right. And so then you talk in your piece about this sort of oddity of the legal argument that is sort of implicitly being made because the point is it hasn't shown up. There's this argument, as you say, that Operation Epic Fury, which the government conceded was hostilities for the purposes of the War Powers resolution. That's over 60 day deadline. All good, we've complied. And then there's this separate use of force that is the Project Freedom operation, which I suppose is not being called an operation. So I want to talk about that. But I'll just start by pointing out that as you say in your piece, the oddity here is that the government is sort of saying on one side that this is separate hostilities, and yet did not, with this operation, or whatever you want to call it, use of troops, file a notification in the 48 hour window that is required under 4A. So talk to us about that dynamic, where things stand, how we should understand Project Freedom, and I guess start with what is Project Freedom?
- [21:07]
A
Sure. So there's two sets of military activities that are both still happening after the May 1 letter was submitted, and one of which has been happening throughout the ceasefire, that one is the maritime blockade of Iranian oil exports, which is worth talking about as well, because that in some ways I think presents the clearest question mark about how exactly you square this with the legal framework. But then on May 4, a few days after that letter, after the 60 day period lapse, the Trump administration briefly, because it's now been suspended again, kicked off this Project Freedom endeavor, which is a pretty serious maritime operation consisting of, at least By I believe, Centcom's count, over 15,000 U.S. military personnel, personnel and 100 different vessels aimed at providing security to commercial vessels seeking to transit the Strait of Hormuz, consistent with international law. The Strait of Hormuz is of course, that strategic waterway that Iran has clamped down on doing massive damage to the global economy by cutting off oil exports and other key critical exports and imports to and from the other folks on the other end of the strait, the Middle east, essentially. This operation is interesting in two regards. One, you are right. The timing of it, the fact that they waited to start this until after the 60 day period had lapsed and even gave it a bonus day or two, suggests that they're setting up some sort of intermittent hostilities. And they say this over and over again in the rhetoric we've seen Secretary Rubio and Secretary Hegseth say recently, oh, this is very deliberately, this is totally different. Epic fury. Epic fury is done. This is Project Freedom. It's a whole different new thing. But they've also framed it as a quote, unquote, defensive mission. And they've specifically said Rubio, Secretary Rubio in his stint as kind of press spokesperson at the White House the other day was most pointed on this. He said essentially we don't shoot until unless somebody shoots at us. That actually fits into another branch of practice the executive branch has occasionally leaned on, including for kind of similar maritime operations, notably in the Persian Gulf during the Iran Iraq war and in, in the proximity of Yemen and the Red Sea during the post Gaza conflict. The kickoff of the Gaza conflict when the Houthis were attacking maritime traffic to kind of put pressure on the international community around that conflict. And the Biden administration intervened there in those cases. Both administrations hinted at. And a couple of legal opinions issued by the executive branch at various points have stated a little more expressly the view that, well, look, when we're sending vessels in international waters or otherwise sending US Forces to act in ways that are consistent with international law and those forces come under attack, they have a right to respond in self defense. But that doesn't trigger Section 4A1 because we're not introducing them in hostilities. We're just having them go about their regular activities or totally acceptable activities and somebody's attacking them. And so if the language in the War Powers Resolution that triggers report obligation when the president chooses to introduce someone into hostilities doesn't apply the same situation when hostilities arrives at innocent US Forces, what I would say about this is that maybe there's an argument there. If there's no expectation that there would be an attack, it's more of a stretch to a situation like this. Although I think there's also questions about the stretch to situations in Yemen and the Persian Gulf where you know that there's likely to be a hostile response, even if you're acting consistent with international law and your view and the view of much of the international community, as you know, straight ships, including US Military vessels trying to transit the Strait of Hormuz would be, you know, that Iran has been made very clear they intend to act, respond in a hostile manner with the use of force. And so I think this argument is a bit of a stretch. But there are those hooks in executive branch practice that it looks like the Trump administration, it's teeing itself up to lean on. And those importantly might explain why it hasn't filed a 4A1 letter. If you are leaning into those precedents where you're saying we're just sending, landing our ships on, you know, kind of neutral passage through international waters and they happen to be coming under attack, then you wouldn't file a 4A1 letter because it'd be undermining your own argument as to why 4A1 and the 60 day clock don't apply.
- [25:20]
B
Yeah. So even though I agree with you entirely that this is probably an extension of previous administration's legal arguments and forays into interpretation of these potentially vague terms, I want to pause for a second on what those interpretations have been because we'll get to it later. But there's a separate question of to what extent it is possible to enforce the War Powers Resolution and what the War Powers Resolution means. So focusing on the latter for a second, is there any evidence or indication that Congress meant, whether when first drafting or when revisiting this statute, that introduction to hostilities meant that it was limited to instances in which the president sat back and very thoughtfully decided whether to deploy troops from an American base into an operational theater? And that's the only meaning of introduction into hostility, is it doesn't include things like being in a situation where it is likely to be the case that hostilities may arise? I mean, the inclusion of imminent hostilities would seem to answer that. But I just am wondering what you make of the legal argument itself, notwithstanding the fact that previous administrations have made
- [26:51]
A
it, it's a fair question. I don't recall in the legislative history, which I've read a great deal of, although in some cases it's been quite a while, a specific discussion of a situation like this where you have the president knowingly putting US Forces under a potential threat of armed attack, but in doing something that's relatively innocent and conventional and consists with international law and other sort of requirements, I do think there may have been discussion. I think this was early in the War Powers Resolution's application when there was this dialogue between Congress and the Executive Branch about how are you going to interpret this? Where I do think, if I recall correctly, some of the US Government officials representing how the Executive branch interpreted this did kind of put forward the suggestion, hey, you know, if US Forces just come under attack unexpectedly, that's not introducing anyone into anything that that doesn't comply. And I don't actually recall because it's not always evident from the Congressional record exactly how Congress responded to that proposition. I'll note it did definitely show up in a 1980 Office of Legal Counsel opinion where that argument is kind of of put forward. The Reagan administration relied on it and put it forward alongside an intermittent hostilities type of argument in the tanker conflict that was around the Iran Iraq War In, I think 1987, 1988, if I recall correctly. And then there's media reports suggesting this is part of the theory that the Biden administration relied on. Although we don't actually have a concrete statement from the Biden administration about how exactly to approach the War Powers Resolution in this context, at least not that I'm aware of. So. So we have these different threads of this evolution, but whether it's aligned with original intent, not really clear. The truth is all these statutes, and particularly the War Powers Resolution, may be a little more vulnerable than others. All statutes have kind of require interpretation to be understood. The question is who gets to interpret and how stable do those interpretations need to be? And that kind of folds into the enforcement question around the War Powers Resolution. Who gets to enforce it and to what extent? But does it still have that kind of constraining capacity? This episode is brought to you by Bill, the intelligent finance platform that helps businesses and accounting firms scale with proven results. When you're growing a business, the stakes get higher. You can't afford infrastructure that breaks under pressure. If you care about security, reliability and scale, I want to let you in on a secret. Bill is the foundational software that nearly half a million businesses and 90 of the top 100 US accounting firms use to automate back office workflows, add secure controls to payment processes and scale without increased overhead. With AI powered accounts payable automation, Bill erases the busy work from capturing invoices, routing approvals, and processing payments, syncing seamlessly with the top accounting software platforms. So your books are always accurate. But Bill isn't just accounts payable. It supports the full payments workflow. Bill has processed over $1 trillion in transactions, leveraging that expertise to help you manage, move and maximize your finances. So stop the guesswork and start scaling with the proven Choice. Go to Bill.comProven to talk with a payments expert and get a $250 gift card as a thank you. That's Bill.comProven terms and conditions apply. See Offer page for details. Amazon Health AI presents Painful Thoughts I I can't stop scratching my downtown.
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Mm, yeah, but I'm not itching to go downtown and tell a receptionist I'm here to talk about my downtown.
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- [33:33]
A
Yeah, it's a really good question. Before I do that, let me circle back and address because I don't want to forget it before we move on, because I think it's pretty critical to understanding the current situation, the blockade element of this, the kind of third military operation. But I think it actually feeds well into this as a case study of some of the challenges about how to enforce and understand the war priors resolution. So the blockade is the part of the military operation that's still ongoing today, that was still ongoing over the course of the ceasefire. So during the 60 day period, the Trump administration, I think if you ask them, would basically say, look, the blockade, A, maybe the blockade is separate. B, I think they would argue, well, the blockade is in hostilities. They strongly suggest that in their May 1st letter because they say, well, we haven't had an exchange of fire since April 7th, and the blockade didn't start until I believe was April 13th. Notably, however, you actually have had cases where US forces have had to use force to enforce the blockade. Claris 1 occurred on April 19th. They shot an Iranian flagged vessel to disable its engine and then you had US Marines board it. A little different because you're an Iranian flagged commercial vessel. But still there obviously was force involved. But more fundamentally, enforcing a blockade, something that's generally considered to be an act of war, centrally relies on the immense threat of imminent use of military force. That's how you get ships to comply with it. So it's very hard in my mind to argue that starting the blockade was not a situation suggesting the imminent possibility of hostilities and that therefore it doesn't fit into at least the priority 60 day clock of the first initiation, because there was no separate four A1 letter filed about it or any other suggestion that somehow this should be considered separately. But even if it did that, it wouldn't be subject to some 60 day clock as well. Even if there's not ongoing hostilities, that's just not what 4A1 says. It's a situation where imminent hostilities is a possibility. It doesn't have to be actual hostilities. And even there's the legislative history suggests Congress intended hostilities to encompass not just exchanges of fire, but something a little broader than that. But all of these kind of nuances. While there's a lot of inconsistencies what the Trump administration is doing, they don't always matter that much because the only entity whose view of the War Powers Resolution matters right now is the executive branches.
- [36:01]
B
So one piece of this that's interesting to me though is, as you've said, there are sort of two separate, whether you call them operations or something else that are happening right now, both of which the administration is suggesting do not amount to hostilities for the purposes of the War Powers Resolution. But what do we make of the fact that there are two separate things that are happening right now? There's Project Freedom and there's the blockade. Should we understand that to be really indicative of. No, this really is hostilities, or do you think we can credit the notion that those are effectively unrelated for analytical
- [36:39]
A
purposes, this really fundamentally gets to the extent to which you can interpret the War Powers Resolution in a variety of ways. Even if you have a finite conception of hostilities, like what hostilities is, which is hard enough to come up with firmly, how do you know when they end and exist and what constitutes one hostilities versus multiple independent hostilities? Right. Or let alone, if you expand it to include, as 4A1 does, situations where hostilities may be imminent. It's complicated. Now, this isn't unique to this statute. Lots of statutes have kind of like open ended terms. And usually what happens is the executive branch interprets it in the course of enforcement activities or whoever else they're applying interpreting law. That's part of the President's authority under the take care clause. And it's well established that the President has the authority to interpret the law. And then if people disagree with it, they sue and courts step in and they correct the executive branch. And that's particularly true today after the Luper Bright decision. A little more in the domestic context, obviously, where the Supreme Court has said, hey, look, previously the Supreme Court gave the Executive branch a lot of leeway in how it interprets statutes that are assigned to different agencies and in fact even allowed them to change it substantially. We're rolling that back. While we may take executive produce on board, in the end statutory interpretation is a job for judges and the courts. And we're going to do it and we're going to adopt one interpretation of statute and that's it. And if that needs to change, it's up to Congress to change it. It's not up to the executive branch to adjust its interpret. That is a philosophy that is hard to square with how the Work Powers Resolution is approached. And the main reason really gets back to this enforcement concept is to say maybe there's five or ten different reasonable ways you could interpret hostilities to mean different things. But unlike most laws, there's not one actor, one institution that has solidified this to a particular interpretation because the. The courts have been very reluctant to engage on war powers matters generally, and the War Powers Resolutions specifically over the years. And the Executive branch isn't bound to retaining a particular interpretation. Instead, it is free to adopt and adapt interpretations until the courts come in and fix an interpretation for it. And that's a privilege. It is used quite liberally in fleshing out the contours of how the War Powers Resolution applies in a way that that has allowed it to maintain different military operations that otherwise may have faced a legal hurdle from the resolution.
- [39:12]
B
Yeah. And I will just note the War Powers Resolution is not the only statute under which this is happening, because this is how. Yes, as you said, and this is how we still have people detained in Guantanamo Bay since 2003 because it is too difficult for the courts to adjudicate whether or not hostilities are finished for the purpose of detention authorities. But anyway, moving on, let us talk enforcement now. So, as we've referenced, there is a possibility that these interpretive questions might get into court, but it's not simple. So talk to us about how that might look, the difficulties of standing, and how arguments like this might fare in a judicial environment.
- [39:58]
A
So the conventional wisdom is that, particularly among national security practitioners, is that the courts will never touch the War Powers Resolution because every opportunity they've had, they have generally refused to even reach the merits of a dispute over the War Powers Resolution. Instead, they've usually done away with the dispute on the grounds of standing, the political question doctrine, or in some cases, mootness, ripeness, usually because time has passed and the circumstances underlying the lawsuit have changed or haven't manifested to the point where there's a real imminent sort of conflict requiring resolution. I think this is often right in the near term. I think that's often right in most cases. But where I differ with some of these views is that I do think there is an outside risk of litigation around the War Powers Resolution. I think this is actually quite deliberate on the part of even those judges that have refused to reach War Powers Resolution issues on their merits in the past. And I think that's a bit of a strategic logic on the part of the courts and judges in the past. We've seen on numerous occasions, judges say, hey, look, we're not going to step in, in this fight between the political branches over whether or not, for example, advising insurgents In El Salvador, to quote one case from the 1980s constitutes hostilities triggering section four and therefore triggering the 60 day clock. That is something that there may be disagreement between the political branches, but Congress can correct it if they disagree. It would require a lot of awkward fact finding around this national sensitive national security space. We're not going to engage in that. Now, I should note these are all lower courts. The Supreme Court never really gotten up to any of these matters. Usually these are district courts, occasionally appellate courts weighing in. And when federal courts said similar things about pre war powers resolution, debates over the Vietnam War, about whether the Nixon administration had authority to pursue hostilities and things like that, the usual argument they give is that, well, while this case doesn't present a case that's appropriate for judicial resolution, other cases might, where there is this clear tension between the executive branch and Congress and there is this clear point of disagreement that if you have a real point where there is an impasse between the political branches, that is a situation where judicial review may be appropriate. This just isn't that sort of hard case. Notably, this is a logic that in the context of the political question doctrine, which is where this logic deployed most often. We've seen this Supreme Court, the Roberts Court, although a prior iteration of it, really seize on and kind of superpower in a way. In a 2012 Supreme Court decisions of Autofsi v. Clinton, they said, essentially, look, even in the foreign affairs context, if there's a clear contradiction between presidential action on a statute, it's a judicial duty to both interpret the statute and determine whether it's constitutional or not. That's what they view as an impasse warrant in judicial intervention, even if it involves political matters. And this was understood at the time, I think correctly, as a pretty significant narrowing of the political question doctrine, at least the way it had been applied by lower courts in various cases with a lot of relevance to the foreign relations and war powers context. If you take that here, that would suggest that if you have a clear undisputed conflict between the executive branch and Congress, that's the sort of case where courts maybe should take this up or maybe were willing to take this up. And in this case, that's actually a little bit closer to the case here because again, the Trump administration has conceded hostilities exist and frankly, it wouldn't be very easy for it to argue that hostilities didn't exist in the scale of military operations. Right. It's conceded hostilities that 4A1 was triggered. The question now is simply, well, have those hostilities or the situation implying hostility like the imminent hostilities. Has that situation wound up? And given the ongoing embargo, I think there's actually like a little bit of an uphill argument here generally. The way I would put this is that the harder that the Executive Branch really pushes against the text of the War Powers Resolution and the greater the conflict it appears to create with Congress. And there are things Congress can do to hypercharge and accentuate that conflict if it chooses to, although it hasn't done that yet. The more likely courts actually, I think, may get involved despite all the things prevailing against them. And I think the Executive Branch agrees with that because that's why you see the Executive Branch branch still complying with the War Powers Resolution in its own vision of it. It adapts these interpretations and it adjusts its military operations. But in the end, it is changing things at the 60 day mark in a way that lets it at least put forward an argument as to why it's in compliance with the War Powers Resolution. And I think that's an effort to mitigate, at least in part that litigation risk, to say, well, okay, we're going to get a lot of slack from the courts and we're going to lean into that slack, but we're not going to actually push it to the brink. And as you have the clearest indicator of this historically, it's the fact that since the War Powers Resolution, the one thing we haven't seen is the core thing that the Hostile War Powers Resolution really cared about, which is a long term ground deployment involving ongoing hostilities where the Executive Branch has pursued large scale military interventions that it has in Grenada and Panama and other cases. It's wrapped them up within 60 days. There's awkward case around Lebanon, the Reagan administration, but it was a little more ambiguous about when it started, when it ended, and in the end Congress ended up authorizing. And the last few days of that kind of conflict, it was clear that that's what Congress was doing. They were just figuring out the process, as I recall, for the historical record. That's a pretty, actually, I think, kind of fundamentally robust record of compliance actually compared to the prior half century of the Korean War and the Vietnam War. But it does at the same time acknowledge the Executive Branch has a lot of leeway about things short of that, where it can come up with a colorable argument about how something's consistent with the War Powers Resolution, it can lean on that and it can be reasonably confident that if it doesn't push it too far, it's unlikely to face judicial review. But because it can never Say absolutely it won't. I think there's still limits on how far it generally is willing to push it.
- [45:59]
B
Yeah, I think that's a really interesting point. I want to drill down on one sort of technicality, which is the question of standing. So who do you think would reasonably have a chance of establishing standing to actually bring this sort of challenge in court? Court.
- [46:14]
A
So that's a really hard question. The people who usually sue for the War Powers Resolution are legislators, and we can be pretty confident legislators don't have standing, at least freestanding. In fact, that's been well confirmed by lower courts in their Supreme Court case, Reins v. Byrd. That makes that pretty clear. There's an argument under Rains v. Byrd about this idea of vote nullification standing where if a critical mass of legislators who could show that if the executive branch had abided by the law and pursued the right measures, they would have been able to to dictate a legal outcome that would have been different than the status quo. So in this case, I think like voting down a war authorization, then maybe they could have standing to sue and that would be either the House or the Senate. I think a majority of the members of either the House or the Senate who could vote it down. You might need to be both because of some weird ways how we conceive of the affected actor in terms of legislative standing. But the minimum threshold you would need would be a majority of one chamber or the other. Then at least you have like one more persuasive tier of argument on the legislative standing. But that's a high bar and that doesn't appear to be in the political cards right now, although that could change in January. But there are other people with standing. Potentially the one category that's been consistently, actually surprisingly able to establish standing, even though I don't think it's really acknowledged well enough, are service members. Service members who are affected, I should say specifically by the given deployment. Service members have repeatedly sued over the legality of US Military actions in the Vietnam War. Nobody raised standing concerns. Although standing wasn't quite as scrutinized then as it is today. We see at least one district court judgment agree that a still dread standing to sue sue over the accumulation of military force in the Middle east in advance of the first Gulf War. And then in 2016, we had the Smith v. Obama, later Smith v. Trump case where a service member was challenging the legality of US Military intervention in Syria. And there the judge actually ruled that the soldier didn't have standing. But that was specifically because the soldier refused to base this standing theory on the idea that he was afraid of being injured or killed in combat. Instead, he was saying, well, I have a duty and a desire to be confident that I'm acting consistent with the rule. It was very esoteric, unfortunate standing argument that lost. But the judge said actually in pretty unequivocal terms. Look, I think think all this line of cases for Vietnam suggesting service members have standing to sue and to challenge legality of deployments is probably well founded and reasonable, even though the judge in that case didn't rely on it. It's not open and shut. There are counter arguments that you can see deployed. And importantly, it's probably not that hard for the government to moot out a lawsuit by service members, at least if it's a small number of service members, because they can always reassign them or change the consequences for them in a way that may strip the injury. That's the premise of their standing claim. And notably, a lot of service members probably aren't excited about suing because it could have career ramifications for them. Imagine under this administration in particular, which has been so unabashed about targeting critics in the Defense Department and elsewhere in government. But nonetheless, there are people there who might have standing. But you can also imagine other candidates that might have standing too, that just haven't made much of an effort in the past. One category might be service members, family members. This was a lawsuit that is Dovie Bush during the second Bush administration or George W. Bush administration in the lead up to the second Iraq War. Their family members joined members of Congress and some other litigants to bring a lawsuit. And both the district court and the. I believe it was the first Circuit who ruled on this, didn't rule that they did have standing, but refused to rule that they didn't have standing. They resolved it on other grounds. And I suspect that's because it's actually kind of a tricky wicket as to whether a family member might have standing, depending on the circumstances of the service member, the nature of their enrollment, how you conceive of what is voluntary, what is not, what soldiers are signing up for. I think there's barriers there, but I wouldn't rule it out entirely as a possibility. Another possibility is states. States have had a huge amount of luck establishing standing in a variety of other public interest circumstances because states have such a wide and diverse array of interests, and some of those interests you could seek it affecting by war effort. So like an example that I have been pointing to, I don't think it's airtight. But I think it's a, it's a possibility is the idea that in California and Virginia state universities are obligated to reimburse tuition that's been paid to them by students. If those students are called up to active duty, that's a direct pecuniary harm to a state institution. We know under Biden v. Nebraska Supreme Court case just a few years ago, that sort of harm is the thing that can give rise to standing. The causal links here are like one step more attenuated. I would say maybe two. So maybe that's enough to defeat it. But I don't think it's ludicrous on its face that there's at least a colorable standing argument here. And importantly, perhaps more importantly, Democratically run states like California and Virginia are at the moment might have the political incentive to actually bring a challenge to this, especially because around this conflict, Democrats have been pretty adamant that they're opposed to this. Whereas in prior conflicts neither party has been super eager to take a position one way or the other. Here, there's a very clear Democratic position of opposition to this among the vast majority of Democratic legislators and other prominent figures. So maybe they see that as being their political advantage. None of us say any of these are airtight cases. They're not. But I think it goes too far to say that because of standing and because of the political question doctrine, a lawsuit is completely outside the realm of possibility. If that were true, I think the executive branch would be able to act with an even more free hand that we're seeing them do around this limitation. Instead, the fact that we see this kind of conspicuous compliance with this broader, much more generous understanding of the War Powers Resolution, but still compliance with it, I think is an indicator that there's at least an understanding, there's an outside risk of litigation, and that's something the executive branch would be better off avoiding.
- [51:59]
B
That's really interesting. I mean, certainly a lot of room for creative litigating positions and legal arguments. I want to switch now to another piece of this sort of enforcement puzzle that you talked about in your piece, which is admittedly less often thought of as enforcement, but is what Congress can do outside of the possibility of certain members of Congress bringing lawsuit. What can Congress do to sort of enforce or pressure the administration to comply with the War Powers Resolution, or more specifically with those members of Congress's chosen interpretation that is at odds with the administrations?
- [52:45]
A
Yeah, I mean, this is really the enforcement tool that I think comes in play more often, and it is in terms of activity, and it's one that blends in with the political realm. And so I think a lot of times people see something that is, quote, unquote, enforced or has consequences for reasons not related to a judicial ruling as somehow not legal and political. And look, I mean, they're intermingled, obviously. But in this case, I do think the legal considerations do feed into these political considerations. They provide additional points of reference. Generally speaking, the War Prize Resolution does give Congress kind of of a tool or kind of two tools they can use to take action where the President won't. The original War Powers Resolution had provisions basically saying if Congress enacted a concurrent resolution, that's a measure that is passed by the House and Senate, but does not go to the President for a veto or potential veto, then the President is obligated to withdraw U.S. forces from any hostilities it may be involved in. That structure, which is known as a legislative veto, was drawn into constitutional question by a Supreme court case in 1983 after the war Powers Resolution was enacted, although there have been some questions about it even at the time of the enactment. And Congress came back and enacted an alternative set of provisions, but due to some political compromise, only in the Senate, allowing for the enactment of similar measures by a joint resolution. A joint resolution is essentially a law, so if it's enacted, it has the full force of law, as same as the War Powers Resolution itself, unlike concurrent resolution resolutions, which don't. But joint resolutions have to be presented to the President for signature and potential veto, which this kind of weakens the framework substantially from the concurrent resolution structure of the War Powers Resolution, that would have required a simple majority of the House and Senate, and the President would then have to withdraw. Under the joint resolution framework, you can move the joint resolution in the Senate forward on a simple majority vote. That's significant because you don't have to get. You. Get you over the filibuster barrier. That's usually a barrier to the Senate taking action. So you can move the measure out of committee to the floor and then to a final vote on a simple majority basis. But if you enact it and then the House has to enact it, they pass it together. If that happens and the President vetoes it, which is very likely and is what happened during the first Trump administration in regard to resolutions on Yemen and on Iran, then to override that veto, you need support from 2/3 of the House and the Senate, and that is a. A supermajority that is extremely hard to reach in this kind of partisan time. So it basically means that these formal measures by which Congress can force the President to withdraw from hostilities never really have the force of law. Concurrent resolutions are probably legally ineffective because of this INS v. Chadha decision from 1983. And joint resolutions will most certainly be vetoed and are very unlikely to override a presidential veto. Not a impossible, but very unlikely nonetheless. We see them debated all the time because they're useful political tools, because they allow sometimes a single legislator can introduce these, enforce at least one procedural vote on them, and in doing so they can dedicate floor time, draw attention to the issue, and then force their colleagues to take a public stand on it through a vote, which can really have political ramifications. So they become these sorts of political tools. That's why we see them used. We've seen eight different resolutions introduced, an all fail on that first procedural vote regarding Iran, sixth joint in the Senate, two concurrent in the House as of the time of recording. What I will say though is that all of this becomes important during those moments where the power flips. Because while most of the time the executive branch has the advantage in saying I don't have to comply with these measures enacted by Congress because I can veto them, that flips when the executive branch needs something from Congress. And that is a moment that's rapidly approaching precisely because of the dynamics and the immense cost of the Iran war. The Trump administration has said it is plans to come to Congress seeking supplemental appropriations for the Iran war as soon as the summer because I think they want to get them before the August recess when Congress usually checks out. This is to the tune of $100 billion, like a lot of money. And this is a measure that, at least by my understanding of it, although I defer to our colleagues who specialize in correctional procedure, I believe these are all considered discretionary funds, meaning that it's not easy to do through reconciliation, which is a clean party line vote. You'll have to get past the filibuster in the Senate, and that means you'll have to get at least some Democrats on board with even all Republicans. That gives a little bit more leeway, a little bit more leverage to those who have reservations about this complex conflict to put particular terms and set conditions on their support for any sort of package. In the end. This, in the past, this sort of omnibus legislation is how we've seen most national security related restrictions get imposed, of which there have been a lot in the last few years, particularly in relation to President Trump, if I'm being honest. And they usually get snuck in through this omnibus sort of legislation. And here, because this is so specifically about Iran, and in particular, a lot of legislators may feel that it's better just not to appropriate any additional funds for Iran, it might be a point where you a lot of leverage for certain people to be able to extract certain conditions. The flip side of it, the risk of it, is that at the same time, sometimes enacting appropriations in support of an ongoing military operation will be understood to be implicitly authorizing it. The War Powers Resolution says you shouldn't be able to do this, but the executive branch has, and I actually think it's fairly persuasive, put forward an argument as to why actually that part of the War Powers Resolution is probably unconstitutional. It can have a presumption against authorizing something implicit through appropriations, but can't bar it. And importantly, even after the War Powers Resolution, even after the courts have occasionally looked at the fact that Congress has kept appropriating funds for ongoing military operation knowingly those funds would support it and have said, yeah, maybe there's a legal debate here about whether this is consistent with the Constitution and with War Powers Resolution, but Congress hasn't picked a fight over this and they've looked at the continuing pro appropriations of that. So it's a really hard case for Congress to say maybe we provide some degree of supplemental funds. Remember, all these funds are going to go replenish arms and otherwise support other defense interests that have been compromised by the Iran war to some extent. But I think Congress very well might want to put really sharp and hard conditions that the executive branch will have to abide by, presumably if they write them sharp enough and establish sanctions for them. And then at a minimum, Congress has to think about, well, do we want to be understood to be authorizing this? Maybe they want to have express provision and they're saying nothing in this appropriations package should be understood as authorizing anything and don't interpret it that way. That's not what we're doing and see if that might work, which I think that actually would be taken on board by most observers. The last thing I'll point about, I'll say about this is that this supplemental appropriation is the most immediate target for this sort of opportunity. But there are others, and particularly in the defense space. The two others are the National Defense Authorization act that still gets enacted every year, one of the very few authorization acts that gets enacted every year, and then the appropriations bills that happen at the end of the year, including the defense one, both of those are similar omnibus legislation that provides similar opportunities. And so you could find restrictions on other things snapped into those. All this feeds back to the enforcement question about the War Powers Resolution. Because if the executive branch is understood to be bucking the War Powers Resolution too aggressively in a way that irritates members of Congress, and some, even Republican members of Congress have objected to what the Trump administration has been doing recently, that adds fuel to the fire for Congress somehow reining them in in the future through conditions at these moments of opportunity where Congress has the leverage. Because it'd be very hard for President Trump to veto any limit, any of this legislation and will probably have to accept conditions and limits on his authority. So, long story short, a lot of this dance around the Board of Powers Resolution, the motivation for compliance, it fits into this big political process. Law and politics are very much integrated in this particular sort of discourse. And I think it's part of the reason, again, why the executive branch doesn't push this quite as far as it may, and why the Trump administration may face some consequences, political or legal, for having pushed it as far as it has.
- [61:02]
B
Okay, so I think we can safely say that as to the question of whether the War Powers Resolution is a toothless anachronism or a still relevant and useful statute for constraining presidential power, that you fall firmly on the latter camp.
- [61:20]
A
Yes, with some caveats. Yes. I don't want to overstate the strength of it. And this is a key point Congress. I think the key point away from this is that the War Powers Resolution, the experience with it, does demonstrate Congress can wield a lot of power in this space. Part of the reason War Powers Resolution isn't more constraining is because. Because Congress has written it in a more loose fashion. The executive branch has capitalized on it and Congress hasn't responded to correct it. But it could. There's a lot of things Congress could do to tighten this if it really wants to. And if it begins experiencing serial defection by the executive branch on the general accommodations and relationship, then maybe it'll get to a point where it actually will.
- [62:00]
B
All right. Well, I think that is a great place to leave it it. Scott, thank you very much for the excellent piece in Lawfair and thank you for joining me.
- [62:09]
A
Thank you for having me.
- [62:13]
B
The Lawfare podcast is produced by the Lawfair Institute. If you want to support the show and listen ad free, you can become a Lawfare material supporter@lawfaremedia.org support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including Rational Security, Allies, the Aftermath and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work@lawfaremedia.org the podcast is edited edited by Jen Patia. Our theme song is from Alibi Music. As always, thank you for listening.
- [63:09]
A
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