An Obituary for the War Powers Resolution
The United States officially marked 60 days at war with Iran on May 1. Sixty days in which Congress has allowed President Trump to act without restraints in taking the nation to war. Such a posture of apathy by the nation’s legislative branch is both shocking and egregious. After all, Congress ostensibly possesses the mechanism it needs to push back. The War Powers Resolution, passed in the wake of the Vietnam War in 1973 over President Nixon’s veto, remains Congress’s most prominent and expeditious tool to rein in the presidency on matters of war. Yet, recent votes aimed to constrain President Trump over war with Iran amount to nothing more than theater.
The same story is true beyond the Iran war. Votes earlier this year in both the House and the Senate on US intervention in Venezuela suffered the same fate. Last week, the Senate also tried to preemptively block intervention in Cuba, which also failed. Repeatedly utilizing the War Powers Resolution with no prospect for success is committing a once- powerful law to a slow and painful death.
Today, there are a rare few members of Congress on both sides of the aisle who initiate votes under the War Powers Resolution from a genuine commitment to restoring the separation of powers on matters of war. But no matter how noble the intent, the War Powers Resolution as a tool no longer works. The time has come to lay the War Powers Resolution to rest and start from scratch in developing a new tool to check the modern American president.
President Trump is not worried about violating the War Powers Resolution. The president believes he retains the right under his power as Commander-in-Chief to act independently of Congress. That fact alone compromises the credibility of the law. Moreover, the Trump administration knows Congress is weak and will do anything to avoid asserting its authority. Put yourself in Congress’s shoes. Why take on the political costs of blessing yet another war in the Middle East if you don’t have to? Today’s Congress practices a pretend form of accountability, offering rhetorical critiques and demanding information and briefings in hallway interviews with reporters. But that’s where it ends.
The War Powers Resolution’s downfall stems from flaws in its design. Over the last three decades, debates on the constitutionality of interventions in Somalia, Yemen, Syria, Libya, and more were either never started procedurally or defeated outright by exploiting gaps in clarity, technicality, and the mechanics of the War Powers Resolution. While holding a vote does force members to put their names to interventions, each failed attempt to check presidents only emboldens current and future executives to push the law’s limits until there are no limits left.
To squeeze the life out of the War Powers Resolution, presidents and their lawyers have stretched the interpretation of self-defense, the lack of definition of key terms such as “imminence” and “hostilities,” and what starts and stops the law’s 60-day shot clock. Call these core provisions into doubt, and the law’s force crumbles like a house of cards.
The death of the War Powers Resolution begs the question is it even worth the effort to develop a new and improved tool? Sitting on the sidelines doesn’t insulate Congress from the consequences of poor presidential decisions. It’s a painful way to learn a lesson, but consequences can also serve as incentives. Take the war in Iran. US supply of critical munitions is dangerously low, gas prices are sky high, and Iran is holding the Strait of Hormuz hostage. All costly problems dumped on Congress’s plate during a midterm election cycle. The discomfort that comes from having to bear the costs of one man’s decisions is a powerful motivator for reform.
Repealing and replacing the War Powers Resolution is a bipartisan project. Similar efforts have been done before, which lends optimism to such a gargantuan task. The architects of the War Powers Resolution met the moment post-Vietnam with a veto-proof majority to pass the law in 1973. More recently, in 2019, it was a bipartisan coalition that passed the resolution to end US support for the war in Yemen, the only time an effort using the War Powers Resolution successfully passed both houses of Congress. The costs of war are not partisan. That alone should invigorate members to get around a table and start talking.
The War Powers Resolution met its moment. But a new moment is upon us. The War Powers Resolution’s flaws coming into light instruct us today on what doesn’t work, mechanically and politically, in practice. What is needed now is the political will to prioritize the health of the republic over party. As we mourn the War Powers Resolution, we should hope that at least a few members from both sides of the aisle in both chambers are meeting right now and drawing up a new blueprint.