Is the Trump administration in violation of the War Powers Resolution? The Resolution provides, in section 4(a)(1), that
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced … into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances … the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing [describing the purpose and scope of the military action].
It further provides, in section 5(b):
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.
President Trump submitted a report with respect to the conflict in Iran on March 2, so this appears to be day 60. U.S. forces have not withdrawn from the areas around Iran, and the use of armed forces in connection with Iran has not terminated.
The administration argues, though, that “hostilities” have terminated, or have at least been suspended, as a result of the cease-fire. While the U.S. military is still enforcing a blockade on Iranian shipping, it is not actively engaged with Iranian armed forces.
This may seem a little thin, because there is clearly still a state of armed hostility between the U.S. and Iran, and U.S. forces remain on site and taking action against Iranian interests even if Iran doesn’t have much capacity to do anything about it. Further, the context of the Resolution suggests that its original meaning was broad one. Its point, as reflected in its statement of “Purpose and Policy”, is to implement Congress’ power to declare war and constrain the President’s unilateral use of military force in a war-like situation. If it could be evaded by Presidents declaring cease-fires and resetting the clock as the deadline approached, it would not serve that purpose. So “hostilities” shouldn’t be read narrowly. Rather, I would say from an originalist perspective, it means (at least) a situation where the President has used force in a way that potentially implicates Congress’ war power, and the military deployment remains ongoing.
However, for those who value practice as informing an evolving meaning, the administration has a strong precedent. The Obama administration made a similar argument regarding the use of U.S. forces against Libya in 2011. U.S. forces initiated a bombing campaign against Libyan dictator Qaddafi, in conjunction with NATO and other forces. Congress did not authorize the action. President Obama submitted a report consistent with section 4(a)(1) of the Resolution. Sixty days later, the conflict in Libya remained ongoing. But the administration argued that it no longer amounted to “hostilities” under the Resolution because the U.S. had “shift[ed] to a constrained and supporting role in a multinational civilian protection mission.”
Specifically, the administration (through State Department legal adviser and Yale law professor Harold Koh [yes, this Harold Koh]) argued in congressional testimony that “a combination of four factors present in Libya suggests that the current situation does not constitute the kind of ‘hostilities’ envisioned by the War Powers Resolution’s 60-day automatic pullout provision.” Those four factors were:
First, the mission is limited …
Second, the exposure of our armed forces is limited: To date, our operations have not involved U.S. casualties or a threat of significant U.S. casualties. Nor do our current operations involve active exchanges of fire with hostile forces …
Third, the risk of escalation is limited: U.S. military operations have not involved the presence of U.S. ground troops, or any significant chance of escalation into a broader conflict characterized by a large U.S. ground presence, major casualties, sustained active combat, or expanding geographical scope …
Fourth and finally, the military means we are using are limited: This situation does not present the kind of “full military engagement[] with which the [War Powers] Resolution is primarily concerned.” … (quoting a prior Office of Legal Counsel opinion)
And arguably Congress accepted this analysis, at least to the extent that Congress did not take any action against it.
As applied to the current situation, with the cease-fire in place, the administration has a reasonable argument that all four “factors” support it. The blockade is a limited mission, it does not involve the presence of ground troops, the risk of escalation is limited because there’s not much Iran can do about it, and the military means are limited to using force against non-complying commercial shipping.
The question is how much this precedent matters. In an originalist analysis, I think the answer is: not much. If the Obama administration’s analysis was wrong (as I think it likely was), that would not change the meaning of the Resolution, even if Congress didn’t do anything about it. And the Obama administration’s position in 2011 is not especially probative of the meaning of a statute passed in 1973. Moreover, that seems true even if, as Professor Koh said in his Libya testimony, the administration’s position on Libya was merely a continuation of an executive branch position “that ‘intermittent military engagements’ do not require withdrawal of forces under the Resolution’s 60-day rule.” The President’s self-interested claims about the President’s constitutional powers are advocacy positions, not neutral interpretations of original meaning. So far as I’m aware (and so far as Professor Koh explained in his testimony), none of the four factors have a firm foundation in any original meaning of the Resolution. To pick just one factor, I can’t imagine that the non-use of ground troops would have be thought a relevant consideration at the time of enactment, given for example congressional and popular concerns about the unauthorized bombing campaign against Cambodia that immediately preceded it.
But I think the weight of the Libya precedent (along with earlier executive branch positions) is more difficult for those who think meaning can evolve with practice. To be sure, the Libya situation is not precisely parallel. Precedents rarely are. It’s close enough, though, to raise substantial concerns — especially for those who think the Obama administration was not acting contrary to law in respect to Libya.
Posted at 6:32 AM