Lawfare Daily: Congressional Resolutions to End the War in Iran

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“It's a concurrent resolution that says directs the president”

remove US Armed Forces from hostilities of Iran as a carve-out for a certain types of defensive actions

that are permitted basically for action necessary

to defend the United States or allies. But basically would direct it and to US participation on hostilities in Iran if enacted if it has the force of law. It's the law fair podcast.

I'm not a late or pet, executive editor of law fair. With my colleague, law fair senior editor Scott R. Anderson. The joint resolution doesn't seem on track to be fully enacted because of the veto potential.

The concurrent resolution seems like it may be a good. If it gets as many votes as the joint resolution did in the Senate, it could be enacted and the expedited procedures work as seemingly intended by the authors of the war power resolution.

But then it won't have the force of law

because section five to see is generally considered

to be unconstitutional under China. Today, we're talking about what Congress can do to get the president to end the war in Iran using the war power's resolution. It's more than you might think.

Congress does have tools at its disposal that could meaningfully restrict the president even if it can't overcome a veto.

“But you have to dig in to some pretty complicated”

congressional procedures to understand why. So Scott, you just published a piece in law fair about congressional resolutions about the war in Iran. It follows up on a piece a couple of weeks ago about which we did another podcast.

But let's start by reminding our listeners of the broader context here.

And to take it at a very, very high level,

we know that under the Constitution Congress is supposed to declare war, but it hasn't actually done that for the hostility is currently underway in Iran, which is not actually unusual

because Congress hasn't formally declared war since World War II. But we know also here with respect to the war in Iran that unlike conflicts like Afghanistan and Iraq in the early 2000s, there's also no legislation

that Congress has passed to authorize the president to conduct hostilities in the same way that the AOMF did, for example. So what role is Congress even playing with respect to the war in Iran?

And what is this war power's resolution? You've been writing about so much. So the war power's resolution, Congress enacted in 1973 over a veto by President Nixon to try and reinsert itself into questions of war and peace to some degree.

And this is in the aftermath of the Vietnam conflict, where there is a feeling that even after Congress withdrew the Gulf of Token resolution, which had provided statutory authorization at least in the executive branch's views

for the early phase of the Vietnam War, they got withdrawn in 1971. The Nixon administration continued to proceed with the war without any clear statutory authorization citing a bunch of implied authority

inherent constitutional authority on behalf of the president. And in response to that, Congress enacted the war power's resolution has a law that says, all right, Mr. President, if you're going to use military force,

we're going to set some limits on that on your own authority. Both premise on the idea that the Congress in the end has the authority to declare war, even though in practice, as you noted, the executive branch has pursued a lot of uses

of military force without congressional authorization of any sort, as is the case in the current or wrong conflict. And so, what the war power's resolution does, essentially, is a number of things, I think,

“to are most important for the purpose of this conversation.”

One, it installs a timeline for the use of military force. This is really, I would say, the only hard legal restriction in imposed, it says that 60 days, technically 62 days, because of the way that clock gets counted, after the president initiates hostilities.

I should say, in search US forces in the hostilities or a situation where imminent involvement in hostilities is expected, I'm paraphrasing the requirement. The president is supposed to withdraw them from the hostilities unless he secures congressional authorization.

Specifically, it's that, like, terminate those hostilities. It can be extended additional 30 days in certain circumstances. There are certain circumstances where that doesn't apply, but most of the time that applies to all sorts of conflicts. And as we talked about last time,

the Trump administration has put forward a few arguments about why, even though it's still engaging in military action against Iran, past the 60 day mark, which elapsed on May 1st, it argues that it has not violated that provision.

This article, I wrote on our conversation. This time is focused on the other,

“I think, key operative prongs of the Orpires resolution,”

which is that it installed special procedures by which Congress could enact certain resolutions and actually ended up having, after some subsequent amendments, two different channels for these types of resolutions, where it could direct the president to withdraw US armed forces

from any ongoing hostilities. And the president was supposed to comply, at least as envisioned by the original authors of the Orpires resolution. And this was a way Congress could assert control over an armed conflict

even before the 60 day mark. Or after it, it's supposed to leave the president were still not complying with the 60 day mark. Basically creating this kind of presumption where up through 60 days, the executive branch

has the initiative they're able to act on, at which point they're supposed to get congressional authorization during that time. But if Congress wanted to assert itself and say, Mr. President, you need to remove these forces

from hostilities, it could do so. Because of a bunch of intervening legal decisions and factors of the last 50 plus years, those provisions don't operate quite as well as, or nearly as well, as their authors intended,

and never really operated that well.

But in the last few years, particularly since the first Trump administration, we've actually seen a revival of these resolutions because of what they allow members of Congress to do on the floor in terms of forcing debate

on certain measures. And thus far, that's actually really been Congress's key role in their own conflict. The Trump administration has not come for any authorization as not yet come for any supplemental appropriations,

although if very well might, have to soon, it's suggested it might as soon as the summer. And so Congress hasn't been asked to formally pass judgment on the Iran conflict. It will have to tell legislation on it to some degree,

because we have annual defense authorization of appropriations bills. And again, there is this potential for a supplemental appropriation request coming through soon. So Congress is going to have,

but bite at the apple at some point in the near future. But up to this point, the executive branch has been proceeding more or less on its own authority, and Congress has essentially been debating the matter, taking votes, and trying to see if they can assemble

the critical mass necessary to take action

through one of these two channels that are resolutions that would require that President Arles could in theory require the president to withdraw US forces. - Okay, so that's a really helpful framework.

I'll just reiterate for folks that if you are interested in understanding the piece of the war powers resolution that pertains to the 60 day cut off that Scott mentioned, we do a deep dive into that

in our podcast of a couple of weeks ago, the bottom line of which lays a foundation for this piece, which is to say that Scott's, I think, pretty clear position is that the war powers resolution is not contrary to some critics,

views a toothless instrument, and should we really understood in its full context and for the many things that it can accomplish separate from a literal forcing of the president to remove troops from active hostilities.

So Scott, let's spend at the rest of the conversation talking about this sort of second prong of the war powers resolution. We've sort of gone through the 60 days, 60 days passed long ago, as we talked about last time,

the administration did have some legal arguments. They weren't really adjudicated anywhere, which was to be expected. But there is this other piece now

“and I think it's largely gone overlooked”

that Congress can still take action in a way that's meaningful. But talk to us about what's happened since the 60 day cut off back in May and as you mentioned, the couple of votes

that have already happened on the question of the war powers resolution thus far. - So yeah, so we've kind of seen two key votes take place over the last two to three weeks. On May 19th, the Senate voted 50 to 47.

So you know, by the slimmest of passage ratios, you know, on majority because it wasn't a tie, the vice president didn't come in to cast a tight breaking vote. To discharge a joint resolution that directs the Trump administration

to withdraw US armed forces from hostilities and Iran from the Senate Foreign Relations Committee. This is the first of several procedural steps that, according to special procedures to war powers, solutions spells out,

can kind of move this joint resolution along towards enactment. But it's notable because all three of those big steps, and there's a couple of intervening measures, we can talk about all our based on a majority vote.

And so if you have 50 to support one, there's a good chance you'll get them to support the subsequent ones or at least you've got most people on board to do that.

So there's a serious chance that maybe there's a critical

mass action enact this joint resolution, eventually. But we haven't seen a follow on vote yet.

“I think that's likely to take place this week.”

It's coming week or the week after. Then we also have on May 20th, the House took a vote on a similar concurrent resolution. That's a different type of resolution, which we should get into this distinction between,

that the president should withdraw from hostilities in regards to, or move US armed forces from hostilities, in regards to Iran. That resolution was called for a voice vote on, I believe it was in May 20th,

the chair of the comedian at that point said, essentially, oh, the nose have it.

“The sponsor of the resolution, I believe, is a sponsor,”

or something that makes, who's a ranking member of the House Foreign Affairs Committee, said, oh, I want to actually cure a vote. I want everybody actually record votes on this. At which point, they've decided to pass the book

and delay that measure, which is usually a good sign that they are not sure they actually have the votes for the measure to go the way that the leadership wants it to go and would decide like it to go. They were able to postpone that all the way

till June 3rd, this past Wednesday at which point

the House finally took that vote.

And then the recorded vote, actually, the resolution had enough votes to pass outright. It ended up passing 215 to 208 with a number of Republicans joining almost all Democrats in eventually passing that resolution.

That resolution now also goes to the Senate. So the Senate is now teed up with both resolutions, which it will be addressing in the coming days. One, the joint resolution, which is through the first of several procedural steps to be enacted.

And then the concurrent resolution that was been passed by the House and is now sitting with them.

“- Since you mentioned what happened on May 20th,”

which was that in the House, it was about to go up for a vote but ended up not. And you mentioned that that was usually a sign that the leadership, which was in charge of deciding when votes are going to come up,

thought that they didn't have the votes for it to come out the way that they wanted. Let's just put a finer point on that. So what was it that was about to be passed that the leadership did not want to have passed?

So it seems. - The concurrent resolution I mentioned. - So it's a concurrent resolution that says directs the president, remove US armed forces from hostilities of the run.

As a carve out for a certain types of defensive actions

that are permitted basically for action necessary

to defend the United States or allies. I'm badly paraphrasing there, but something that effect, but basically would direct it and to US participation of hostilities in a run. If enacted, if it has the force of law,

those are the two big outstanding questions that hinge in this whole process and make it a little more complicated that may seem at first blush. - So you mentioned in there

between what was happening in the Senate and the House two different types of resolutions and I wanted to ask you what those are, how to distinguish them and why it matters. So one is a joint resolution,

that was coming out of the Senate, one is a concurrent resolution that was happening in the House. Talk about those. - Yeah, so there's a really important distinction

between these two types of resolutions, both of which are being implicated in these work powers resolution processes. And that are used very different ways because they have different legal effects and significance.

A joint resolution is the equivalent of a bill. It's a way to enact legislation and act a statute. Because of that, it has to be passed by both the House and the Senate and then it has to be presented to the President

who then has the opportunity to veto it. And if the President vetoes it, then it does not become law but it goes back to the House and the Senate who if they can rally two-thirds support in both chambers can override the veto.

“So that's how the original or prior resolution enacted,”

which was itself a joint resolution. And when a joint resolution gets enacted, it has the force of law, meaning it is the equivalent of federal law of any other statute supersedes prior statutes, wearing compatible,

things like that, it is full federal law. Concern resolutions are different. Concerned resolutions are measures that just go to the House and Senate for passage. And they primarily use to do administrative things

or expressive things or take institutional actions on behalf of Congress. Various things that Congress has the power to do, but that do not require to present them into the President

because they're not exercising legislatively authority because they don't create obligations that have the force of law. They don't create federal law instead they just have Congress take different actions. These both became implicated with a more power resolution

because what I was originally enacted in 1973, the war power resolution has a provision section 5C, that says, Mr. President, if Congress and ex-concurrent resolution directing you with a remove us arm forces from hostilities, you have to do it.

And then it would further and establish certain expedited procedures for considering concurrent resolutions, both in the House and the Senate, that were basically designed to move them forward on a majority vote.

Basically saying, okay, if you have majority support, you can within the matter of two weeks give or take. Get a resolution fully voted through this chamber and it means that Congress can reign the executive and relatively quickly within a matter of a couple of weeks,

maybe sooner if it can get enough critical support

and impose that obligation. And that statutory obligation in theory came from section 5, three of the war powers resolution. It wasn't actually from the current resolution itself. The current resolutions adoption was just triggering

the statutory obligation.

10 years after the war pressure resolution was enacted

“in a Supreme Court case called INSD Chata,”

where it struck down a arguably similar statutory set up in a different statute.

And set basically look, if a congressional measure

is intended to have the force of law, it's creating new legal obligations and it's changing the way other laws apply, then it needs to go to the President for presentment and it needs to come in the form of a full statute.

Congress can't exercise what is widely known as the legislative veto where it makes the outcome and the effects of its legislation contingent upon other action other than the enactment of superseding law. The problem with this is that legislative vetoes

were built into all sorts of legislation, particularly in the foreign relations and national security space. So at least by many people's accounts although there are some scholars who question this,

getting rid of the legislative veto really shifted the balance of power because all of a sudden Congress had given these broad delegations to the President

on the understanding that a simple majority

“could rain them in, but now this simple majority”

couldn't do that because it couldn't trigger these legislative vetoes. In several cases what Congress did is that it went back after Chata and enacted new expedited procedures that allowed them to do the same things

through joint resolutions. This solved the Chata problem because joint resolutions are subject to present, for to present men they can have the force of law. So you're not violating the presentment clause

by not giving the President opportunity to veto, but you also have to give the President opportunity to veto. And then so far as these measures are usually intended to restrain the current president, they are almost certainly going to veto.

So it raises the effect of threshold for restricting the President two, two thirds of both chambers of Congress as opposed to a simple majority with chambers of Congress.

A pretty big shift, particularly in our current moment of a kind of sharp part is in split.

“That's fairly even between the two chambers.”

Obviously it bounces back and forth side to side. In the more powers resolution context, though, the one thing that they did a little different than other contexts is they actually left the old procedures in place.

So there are still all these old procedures that are still in the law about concurrent resolutions. And as we can talk about are still being used for certain things and that they enacted additional procedures that were somewhat different for joint resolutions.

But because of internal debates between the House and the Senate, those additional procedures that got enacted now codified at Title 50 of the US Code Section 1546 lowercase A, if anybody wants to read along at home,

those procedures only apply in the Senate in the House, those joint resolutions have to go to a regular order. And so it creates this discrepancy in procedures between the two mechanisms that leads to certain patterns

of in how they've been used in the last few years. - So one quick aside, which is implicit in what you've been saying but I just want to spell it out a little bit for people, explain what the significance is of these expedited procedures

and of having a different thresholds for votes in the Senate because as you were describing with the joint resolution, it seems like it's quite a big cost to have to present something to the President to know that it can and in many situations will be vetoed

which makes it feel like a frivolous exercise. But as is the premise of your piece, it's really not. But explain to us a little bit more generally what the significance is of these procedural bits that just help move things faster than they might otherwise.

- Absolutely, and not just faster with more certainty than lower the threshold. In the Constitution, the baseline requirement for Congress to act is a majority basis when you have quorum, right? So both chambers can take actions within their authority,

bad the basic majority vote. But they also each get to establish and actually have the exclusive constitutional authority to establish their own rules of procedure. And they have used those in different ways

to actually raise the bar beyond a simple majority for a variety of often very good reasons about managing workflow, managing partisan agenda, things like that. So in the Senate, the most famous, we are familiar with,

is the filibuster, which basically says

on any debatable motion, which is the vast majority of motions, any single senator can filibuster, which used to mean you would stand up and just keep talking the floor and debating debating and debating until you ran the clock out and everybody gave up

and you could kill the measure. But now, essentially, with they allow people to just say, I'm filibustering and then nobody moves it forward unless you get 60 other senators to vote for closure, which allows it to move forward.

So it basically has a super majority requirement of 60 votes to move forward on most measures in the Senate that would include joint resolutions and concurrent resolutions without these expedited procedures. In the House, you don't have that super

and processes that center around the leadership control

“of the majority party setting the agenda.”

And so it's really hard for members of Congress to bring an item forward on the floor of the House, if it doesn't have the support or at least the acquiescence of the majority leadership. Now, sometimes the minority negotiates to get votes

on certain items, sometimes enough bipartisan support can forward that the majority leadership says, okay, we'll let a vote happen on this anyway. And sometimes you see things like discharge petitions, which are these kind of extraordinary measures

where if you get a simple majority of members of the House to sign a petition and go through certain procedures, eventually you can get a measure to the floor, even if the speaker doesn't allow it to happen. That's actually happened a few times in this Congress

to speaker Johnson with members of his own Republican caucus, moving certain measures forward.

But the key point is most of the time,

it's really hard to move a concurrent or joint resolution or any other legislation forward unless you get the speakers support. The expedited procedures, which again, only apply to concurrent resolution in the House,

are designed to buck that. And say essentially, look, if certain types of measures turn qualifying measures, in this case with concurrent resolutions,

“saying Mr. President or move yourself on forces from hostilities,”

gets put forward, then after a certain period of time, it's gonna automatically move through the process from committee to the floor to a vote. And eventually they'll be in that, it can be enacted on a simple majority basis.

- Okay, so let's bring this all back to Iran. And as you mentioned, there have been a couple of different votes. Talk to us about where we stand right now in this moment. What are the most recent votes? What is T-Dop for the next vote?

- Sure, so we've seen a bunch of different votes take place in both chambers. The measure that passed the Senate

or at least passed the first procedural hurdle

of the Senate is discharge from committee on May 19th, which is Senate Joint Resolution 185. As I mentioned before, is this measure that, again, directs the present withdrawal or moves US armed forces from hostilities

in Iran with certain carve outs and caveats around defensive actions. It was the eighth of these sorts of resolution, but they have been put forward. We've seen seven prior ones fail to hit that 50 vote threshold

that this one finally did. All joint resolutions. The Senate has only debated joint resolutions so far. The House meanwhile, that H.Connor as 86, is the measure that was passed on June 3rd

and has been fully adopted by the House unlike the joint resolution of the Senate where it still has additional procedural steps to go through. That resolution was the third concurrent resolution

we've seen debate in the House around Iran since February 28th. And the prior to, again, failed to reach that threshold.

“I think the second to last one actually had a,”

essentially, a tie between the two sides, but was enabled to proceed.

This one finally did tipping over about 2015, 2015 margin.

The thing that's interesting about this is that we've seen the House only to make concurrent resolutions and the Senate only to make joint resolutions. Without understanding the expert, I'd procedures that wouldn't make any sense

because they each need to debate a measure that goes to the other chamber or kind of adopt the same version of particular measure that they can then exchange and get to the same page. But instead, the reason we're seeing this happen

is because in the House, there are only expedited procedures for concurrent resolutions. And so they are using those expedited procedures to force these votes on these measures to be able to pass them and send a strong signal.

That says, "Hey, we oppose what you're doing, Mr. President." And on top of that, we can put pressure on other Republicans here by forcing them to take public votes on this issue where they might rather not because it forced them to take public stance

and say, "Actually, we agree with Democrats on this, "we don't like the way this war is going, "which a handful of Republican members of that, "the House have now done." In the Senate, the same dynamics are there.

There's still this instrumental use of these votes as a political tool to kind of demonstrate and put pressure on legislators to come out now. Position to the conflict or at least take a public stance on the conflict one or the other.

But you had the added factor that there are expedited procedures for joint resolutions and joint resolutions in theory are more effective because, again, they don't face the child a problem.

They can result in hard legal obligations if you can override a veto and get enacted. And so, there's been this preference for joint resolutions in the Senate. And this has been true, I should say,

in prior debates, we see also a similar set of debates around the Yemen conflict in 2018, 2019, around Iran and the Soleimani strike in 2020. And in those cases, we saw a similar type split, a little bit more crossover in concurrent resolutions

and particularly that latter case. But the focus ended up settling on joint resolutions in the Senate and the concurrent resolutions of the House under leadership, that was allied with the White House.

But in the case of the first Trump administration, that change, of course, after 2019, when Democrats took control of the House, then all of a sudden, you saw Democrats in the House be able to enact joint resolutions

and you saw debates along those lines as well. And ultimately, saw several joint resolutions and get the past but both chambers. The trick now, the hard part now is that

still have to go to the House

where there's no expedited procedures for them. So, what the odds are, they get past by the House's, I don't know, but it's a much harder road than if there were democratic leadership, willing to put up for a vote.

You may have to do a discharge petition or find some way to get leverage over leadership to get them to schedule a vote on it and allow it to move forward,

“which I think would be a hard thing to do.”

But I don't know 100% know. So, it's not clear joint resolution is gonna go forward. And of course, even if the House did adopt it, it almost certainly would be vetoed by President Trump and it seems pretty clear that two-thirds of board

in both chambers is something that this resolution is not gonna get any time soon. Barring something really dramatic, changing the current vote patterns. So, the long and short of it is both sorts of resolutions right now. Neither one seems on track to be full.

Well, the joint resolution doesn't seem on track

to be fully enacted because of the veto potential. The concurrent resolution seems like it may be a could. If it gets as many votes as the joint resolution did in the Senate, it could be enacted and the expedited procedures work as seemingly intended by the authors of the war power resolution.

But then it won't have the force of law because section five to see is generally considered to be unconstitutional under China. Some people disagree with that. There are scholars who say it shouldn't be seen that way.

And maybe someone will sue and bring a court case and persuade the court that it shouldn't be that way.

“But the operating presumption of a lot of people”

is that China invalidates section five to see effectively. And therefore, the concurrent resolution won't have the effective imposing a new hard legal obligation on the executive branch as it regionally would have in the original war power resolution scheme.

OK, so that's really helpful. And I do think it's useful to understand that it is not simply because the left hand is not talking to the right hand that there's a concurrent resolution in the House and a joint resolution in the Senate.

And these two things do not match without some sort of reconciliation. So setting aside the idiosyncrasies of procedures in the two houses and why they end up with this odd sort of conflict and not being able to come out

with the same type of resolution. One thing that's really interesting in your article is that you describe that they're actually for purposes of if not legally binding or force of law exactly that there are legal implications

for resolutions and in particular, you prefer one type of resolution over the other. So talk to us about all of that. The difference between these two resolutions, which one do you think is preferable

under the circumstances and why is that? Presumably, it's not only because you prefer the Senate

over the House for a second.

No, not at all, not at all. Friends, friends, in both chambers on both sides of the aisle, what I would say is this, essentially. First is this idea of what are we trying to accomplish with these resolutions.

There is clearly a political element of using these resolutions. In terms of, they are really effective tools that are building these coalitions and slowly building pressure to bring people over

to oppose these conflicts around popular. It worked very effectively in the contact of the Yemen conflict in 2018 and 2019 and we're seeing a similar strategy. Here, I think begin to bear fruit. The fact that you've slowly been able to pull

Republican legislators over in small margins, but significant enough to change the outcomes of some of these votes because of the narrow control of Congress, that's a pretty big political impact. But there is this general sense that,

well, none of these things are going to have any legal impact because Chata blocks concurrent resolutions for having an impact and joint resolutions that are going to get vetoed and there's no realistic possibility of override.

So they don't really have any legal impact. And so they're all kind of equally coming out in the wash as not having legal impact. It's really about the symbolic importance of these votes in these measures.

And I've even described it that way in my prior writing. I should note, I'm as a guilty of this as anyone.

“And I think there's a lot to that to some degree.”

Again, the political impacts are real and significant. That may well be a primary driver of why Congress is using these things for members of Congress or using these things these ways. The point I make in the piece though,

which I think is an important one, which is that even though these measures lack the force of law, that doesn't mean they're without legal effect. The executive branch is whole argument as to why the president has the inherent constitutional authority

to use force in the way he does, is premised on congressional acquiescence. It is premised on the idea that Congress has effectively tacitly delegated the authority to the president or accepted that the president has the authority.

And that that has effectively, even though the plain text of the constitution says, Congress has the authority to declare war. And the president's the community of the armed forces that has the executive power,

but doesn't have any more specific, we're powers than that. Morris Congress has a whole bunch of other specific authorities in addition to declaring war. You know, that plain text alone, you wouldn't really look at that and say,

oh, this means the president can do whatever he wants in using military force.

up to a certain limits. And to get there, they basically say, well, look, we have a long, long history of the president's taking action, like this in Congress,

never objecting a lot of times even embracing it,

accepting it and endorsing it. I should say, a lot of people, including me, take issue with that framing of both the history and the way you assess congressional acquiescence in that history, there's some truth

with the executive branch is saying,

“but I think it oversimplifies it dramatically.”

I think a lot of other folks would be even stronger in objecting to how the executive branch handles that. But even if you'd take their argument on face value, things like concurrent resolutions and veto joint resolutions that clearly manifest votes

and clearly express the views of Congress are clear evidence of congressional opposition. And legal frameworks, the executive branch, relies on looked at congressional opposition to say, well, can the president take this action

what degree of congressional acquiescence is he getting? The two most familiar are both from the Youngstown decision of 1952. This is just as frankfurt as idea of the historical gloss. This is the idea that long patterns

of inter branch behavior that aren't objected to can lead to a historical gloss that kind of shapes and can even add to a little bit the power of the branches. And that is an argument for why the president can use this authority. Notably, that's also an argument.

Some people put forward us to why the legislative veto should be permissible and spite of the presentment clause, but that's an aside. The other one, perhaps even more famous framework,

“is Justice Jackson's Tripartite Framework,”

which basically says, OK, the president is authority fluctuates

with the degree to which he has the agreement of Congress, where Congress is silent, then maybe the president can take action or not, it depends on how we read the implicit and express will of Congress as expressed,

but where Congress opposes what the president is doing, then the president's authority is at its lowest app and is supposed to be subject to immense scrutiny if he's trying to do something in that zone. Both frankfurt and Jackson, in that opinion,

looked to a whole range of congressional expressions of views and assessing the degree of acquiescence or opposition of Congress well beyond just statutory enactments. They looked to legislative history in particular, they looked to a variety of other enactments.

And that's a trend the Supreme Court is continued up into the Roberts Court, where we've seen both frameworks applied based on similar assessments of a more holistic record of congressional activity. And the executive branch itself is embrace that tool.

It has frequently cited concurrent resolutions. At times, simple resolutions and resolutions were just the House or just the Senate adopted resolution, just representing its view, that chamber's views, legislation that has non-binding provisions

like findings, language. They cite all this as signs of congressional acquiescence and support for what the executive branch is doing in a variety of cases, presumably the opposite is true, too, if Congress does something the opposite,

that batches away against the president's authority. And notably, I should say, also a number of lower courts when they have expressed a reticence about reaching more powers disputes in litigation when these things, they do become the subject of litigation

rarely, but it does happen. They've often said it's not just dishable on rightness grounds or on political question grounds because there's no clear constitutional in-pass between the political branches,

meaning that there's no clear conflict that can't be resolved. But several have said, if Congress were to take concrete action like enacting a resolution expressing opposition, that would change things.

So there's the possibility that enacting a resolution clearly opposed to what the president is doing, could even add to the just-to-shability factors in a way in favor of the disputing just-to-shability in a way that courts haven't really embraced in the past.

All this, to me, says these things really could have legal impact. And if you acknowledge they have legal impact, then you have to think, well, of these two options we have before us, which is a veto joint resolution or concurrent resolution.

The first, the veto joint resolution is where Congress has tended to put most of its energy for the last few years, where we see, I see in both in the Yemen conflict and regard the Soleimani strike in 2020,

two joint resolutions get enacted by both the House and Senate, then get vetoed by the president and bump bound.

And there was never an effort to enact a companion concurrent resolution.

There were some introduced and voted on, but both chambers didn't take them up. The question I raise it for me though, is that, well, which one of these two measures is a better and more credible expression

of congressional sentiment if what you really want to do is put the thumb on the scale about clearly stating congressional opposition?

“And I think it actually may be concurrent resolutions.”

For the simple reason that joint resolutions, if they're vetoed successfully, they're never enacted. They're never actually instruments that are adopted. They create a lot of legislative history

that seems to strongly suggest Congress feels a certain way, but we know we live in an era, unlike Justice Jackson, Justice Frank further, we're legislative history is viewed highly skeptically

by a lot of federal judges, who see it as highly prone to manipulation. They are used to focusing on the text of enactments of Congress.

It's not a statute, but it is an actment of Congress with a plain text. And so particularly in this moment, in our kind of textualist era, that most federal judges, that's the length through which most of them are operating,

at least as kind of a initial presumption, as a first order approach to problems,

“I think concurrent resolutions may actually be more”

probative in persuasive. And so there's an actual argument there that says, well, maybe concurrent resolutions are at least doing in addition to joint resolutions, or maybe there should be our highest priority

if we have limited political capital to commit to these things. And in the present circumstance, that's particularly notable because right now, we're in a situation where there's no expedited procedures for the joint resolution, SJRS 185,

if it gets passed by the Senate, when it goes back to the House, it's not clear they're going to be able to get a vote on it there. But there are expedited procedures for concurrent resolutions, the Senate.

We can get into the fact that they have some problems and raise a lot of questions

because they've actually never been used before,

but they're there, at least. There's a hook to try and get them expedited consideration. You know, that's another argument to say, well, maybe we should focus on concurrent resolutions and getting both of the House instead of each of the House

and the Senate, you know, one doing a concurrent resolution, one doing a joint resolution,

“and hoping the legislative history meets in the middle.”

- Okay, so before we turn to the difficulties of concurrent resolutions in the Senate, I want to just walk through what you talked about in really concrete terms as if this was a lawsuit. So as we talked about in our last podcast

and as you spoke about also in your piece, of course, that first piece, there is a tricky question as to whether anyone would ever have standing to bring this particular legal dispute that is whether the president has the authority to continue.

These hostilities in Iran, notwithstanding the lack of permission or authorization from Congress.

But as you opined in your first piece,

there may be some standing opportunities for some groups. So let's take for the purposes of this illustration as a given that someone has met the standing threshold and they are now presenting a lawsuit, challenging the president's authority to continue hostilities.

So with the concurrent resolution, you mentioned two different pieces that it might be able to accomplish in a way that other expressions of congressional and tinge might not. The first is just a stability.

The second is on the merits. Can you just talk through, again, in a little bit more concrete terms, what that would look like in a lawsuit?

“- Yeah, I mean, essentially you will have litigation,”

you will, if somebody's able to establish standing, you will have the executive branch most likely argue on the premise of a number of other cases that the dispute and question as to whether it is, they're complying with more power resolution,

whatever the basis for lawsuit is, is not subject to education, not either because it's not ripe, which is usually an argument that says, well, there's no clear impact between the political branches.

There's no clear split that can't be resolved. Congress isn't actually imposed to us to phrase it slightly differently, at least they have an acted as if they are. And then the political question doctrine,

which is a doctrine that basically says certain issues,

just don't have just digitally manageable standards to resolve them, they require political judgment, they're left to the political branches and this is one of them. The former or the right in this argument

is most clearly addressed by a clear instrument expressing congressional views. All the legislative history could do it as well. I just think maybe concurrent resolution will be persuasive to a slightly broader brand

of federal judges, but basically saying, look, Congress hasn't acted as a resolution, clearly saying they don't support this. And they don't really have any clear methods towards a remedy that can get over the presidential veto

because the president is disregarding the war power resolution, the statute that did enact previously, whether it's the 60 days requirement or maybe you want our use section five, three actually, is an invalidated by Chata.

There's a bunch of ways you can argue they're violating the war power resolution. So there you have the resolution does kind of hit that rightness just a stability point. On the political question doctrine,

we've seen the Roberts Court push back and narrow the political question doctrine to be a case where they say essentially, look, the political question doctrine doesn't apply where there is the president is acting contrary to a statute

that there's just clear conflict between the branches. This is the Zifatowski one decision of 2012. I'm simplifying a little bit, but that's at least one reading of the case. I think a dominant one, which is that,

look, there's a clear conflict between the branches doing with the president's acting contrary to a statute, then that is justifiable. It's not a political question because that's what court to do.

The interpret statute, and they did interpret whether a president is acting constitutionally in line with them or not, or has some independent constitutional authority that allows them to supersede that statute. In this case, the violation wouldn't be the concurrent resolution,

because you have the six-day violation already as I discussed in that prior piece. Maybe you could also argue just a violation that declare war clause generally the constitution, generally, if you were so inclined.

The key point there would be the concurrent resolution,

I think would just be additional confirmation of the opposition of Congress. But the actual statutory violation, again, you already, as I wrote in that prior piece, you already have that there.

“I think that's what creates some legal risk”

that courts actually would find this justifiable in the first place, the concurrent resolution is kind of additional icing on the cake for judges who, in spite of the war power resolution, which is an active 50 years ago,

want to see signs that current Congress is actively opposed and actively opposing what's been done. I should note, all of this is speculative. I don't want to sound like I'm predicting that a lawsuit is imminent

and then we'll immediately be vindicated. I'm not suspecting that. I mean, there's reasons why we don't see a lot of litigation around this. But as I try to make clear in our last discussion,

I would emphasize here.

And my key point here is that this is not

an situation without legal risk for the executive branch. And putting pressure on the executive branch, something that Congress can do by upping that legal risk. And you up that legal risk by doing things

like giving a potential plaintiff's arguments that they can rely on to say what we do as standing or someone has standing. Or here's how we overcome this right, it's argument. Or here's how we overcome this political question,

doctrine issue. And the more those arguments pile up, the more executive branch lawyers will have to look at them and say, Mr. President, just so you know,

the harder we push on this. And frankly, the more blatantly we violate the 60 day cutoff or other war powers resolution restrictions, the greater the legal risk that somebody will actually be able to file a lawsuit.

And that has a degree of peril for us that a lot of people,

“I think are a little too cavalier in dismissing.”

- Yeah, and you actually mentioned in your piece and this current piece that there could even perhaps however unlikely it may be, be a mechanism for Congress to actually give itself permission to have standing in this sort of lawsuit.

- Yeah, I mean, so this gets into a fairly speculative part of the piece, but I think it's worth drilling down on because I think it's illustrative of some of the untapped potential potentially in the war powers resolution.

And perhaps even more than that, ways Congress can think creatively the tools available to them even in a situation where statutory enactments are likely to be blocked by a presidential veto.

And that's this, like I said previously,

the concurrent resolutions have never actually been debated

through the procedures provided by the war powers resolution is in section seven of the war powers resolution. Those section seven procedures have never been used in the Senate. The only three concurrent resolutions that have gone from the House to the Senate in the last,

I think 30 years, I think the first ones in the early 1990s, they all actually just sat in the four relations committee. I never moved out of that committee. Despite that, but I procedure saying,

“hey, these are supposed to move forward after 15 days.”

Looking at the record, the Congressional Research Service and have really, really good report that they deserve a bunch of credit for that. I drew it from deeply for this piece. Basically, pointed out, look, there's these three resolutions,

each had different issues with them that at least in one case, expressly was relied on by the chairman of the Senate Foreign Relations Committee to not move it forward. In other cases, it may have been likely what had been.

And that is that one of them Congress enacted statutory authorization within days of it coming over and to be eligible for the sections seven procedures, you have to be directing the president to remove your son of forces from hostilities

that have not been authorized by statute. So that would invalidate. Any sort of measure is from expedited consideration. And the other ones didn't use remove as the verb. They said things like if to terminate the participation

to a son of force, or if a son of force is shall not do X, Y, Z. There was a theory that for a while, that I don't think is unreasonable, frankly, that you didn't have to stick to the plain language and that specific verbiage of section seven,

but at least the chairman of the Senate Foreign Relations committee appeared to assert that they did and at least one, and we think two cases and nobody successfully challenged that to the Senate Parliamentarian or through other measures.

And so that's been kind of the operative understanding. Notely, H. Conner has 86, the resolution that just passed the house actually almost exactly follows the language of section seven. So it's not clear you're gonna be able to make an argument

about that for this provision. But there are other risks in this procedure, precisely because it is new. The concurrent resolution procedures weirdly, all are framed in the passive voice.

They basically say a concurrent resolution show, be discharged from committee after 15 days, and then show will be brought to the floor to the vote. It's not clear what happens if relevant Senate officials don't comply with that.

The joint resolution procedures, which were enacted 10 years later, are slightly more of a more modern format that other expedited procedures have followed more recently, where they basically say,

okay, once this timeline passes, a motion to proceed is automatically in order,

and say, okay, a motion to proceed,

“majority vote, not debatable, no filibuster, let's go.”

But that doesn't exist for the concurrent resolution process. And when there's no action pending on the floor, it's harder to do things like a point of order to correct things. And maybe yes, there are things you could do like do a motion to discharge

or a motion to proceed to consideration on a measure that the Senate leadership hasn't brought up, but usually those measures are debatable, and then therefore can be filibustered. So it reasserts the super majority threshold.

I will say, I don't know what the answer is here,

what the Senate thinks. Clearly, the Senate section seven procedures were designed to move measures for it on a majority basis. And that is the only outcome,

if you think a resolution is qualifying, that's the only outcome that it's consistent with legislative intent in my view in those measures. That said, what the remedy would be if you got a bad faith actor, not willing to do that,

isn't clear to me. That's a real concern. And notably, there's something that people don't worry about for a number of years around these older expedited procedures,

that that's been flagged in CRS reports and other places for a number of years. Assuming it even gets that far, we get to the point where you can get a vote in the Senate on the concurrent resolution.

There's another question, which is,

“are amendments permitted, and do they have to be germane?”

Section seven doesn't anything about either of this.

And generally, concurrent resolutions are both amendable, and amendments actually don't have to be germane, which is a phrase that's used to describe when you consider amendments, do those amendments have to strictly be related

to the subject matter of the legislation being amended, or can they be about anything? Could I amend a concurrent resolution about they are on war to increase pay to federal workers to postal workers, right?

Something totally unrelated. Now, generally, in the joint resolution context, the procedures when they were debated in 2018, similarly, didn't have an express germane as requirement, but the Senate voted 96 to three to impose one,

which it can do by its own rule making authority. And I kind of suspect you're gonna see a similar effort in the House. So I think you're likely to have to deal with only germane amendments,

pardon me not in the House, in the Senate in regard to concurrent resolutions. But we don't know 100% no, there's no technical, Germany's requirement at least currently,

that clearly exists, that I could tell. Then the question comes, okay, well, you do allow concurrent resolution to be amended with a least germane amendments, what does that mean?

Are there ways we could expand upon this concurrent resolution to do things more effective now that we are thinking about this in terms of amplifying the legal effects of these? And I point out a couple of different things.

One, you could use finding sections and preamble Tory sections in much greater detail and with much more clarity, express both Congress's opposition to what exactly, like what exactly they're opposed to the executive branch

doing, where it's, they may be okay with some uses of force, but are opposed to things otherwise, also, they can articulate their views of how the word power resolution applies. They can say, we do think that hostilities

have continued since February 28th, even though the executive branch is off with this argument as to why it's not. We don't buy it and we're gonna put this in a finding section, we're gonna put this

in a preamble Tory section. A lot of joint resolutions, pastured that the prior joint resolution procedures after the Germanist requirements was imposed had provisions like that,

other concurrent resolutions that haven't gone this far, but have been adopted as had provisions like that.

“So I think that's pretty likely that provisions like that”

would be your main and amendable and wouldn't do anything to disqualify anything or be put outside the scope of the procedures. And then I feel like there are two other things that you could use concurrent resolutions to do

that probably people are gonna raise big, cool Germanist questions about, but I'm not sure clearly beyond the scope of being German. One would be, as you mentioned, authorizing a lawsuit on behalf of Congress

or on behalf of the House or the Senate through a concurrent resolution.

This is something Congress says a whole has never done before,

although the House and the Senate have litigated as it served as plaintiffs in certain select litigation occasionally, but there's reason to think that Congress has a whole or the House and the Senate individually or acting in tandem would have standing

to challenge a variety of particular procedural failings like a failure to come to Congress for authorization for the use of force in ways that individual legislators can't. I'd have consistently lost under standing doctrine.

The way the Supreme Court has adopted it of the last few decades. It's not your type, it's not certain, but it's an additional credible, colorable argument. And notably just the House has in multiple matters

pursued litigation, challenging, different executive branch actions, to predict or in the first Trump administration, and during the Obama administration, actually, that's the Burwell case,

and there's another case over border wall funding and appropriations violation there that went all the way to the DC circuit. So that's a possibility. And I should say, concurrent resolutions,

you don't need legislation to do that. You are just Congress enacting an authorizing action on your behalf as an institution. You don't need legislative authority to do it.

You can do it as an institution. So you can use concurrent resolutions to do that. I'm fairly confident, even though again,

The other thing that you can use concurrent resolutions to do

“is to amend your own rules at the House and Senate.”

House and the Senate usually set their own rules, but just as we see in the Warp Hires resolution, they can use collective measures to adopt rules for their chambers as well. Those rules can subsequently be superseded

by each of the House and the Senate if they so choose, but as long as they don't choose to do that, they remain on the books. Either in legislation or that could be done through a concurrent resolution as well.

And so you could imagine a scenario where if Congress can get a concurrent resolution to the floor to vote and get enough support to adopt an amendment, they could do something like they say,

yes, we know we can't create any hard statutory obligation on you now, exactly in a branch. But we are going to establish this expedited procedure so that the next time we debate the National Defense Authorization Act

or an appropriation act or your supplemental appropriations requests that we understand is coming. We will automatically consider an order in order expedited not subject to filibuster, a motion to amend an adaprovision,

installing a hard statutory restriction or funding cut off for the hostilities against Iran or whatever scope of activity Congress wants to cut off. A much harder measure that actually would have the force of law. You'd have to wait for those provisions to come up

and you'd be relying on the fact that the president is gonna have a hard time vetoing those important annual measures every year and maybe he'll veto it anyway and won't get you anywhere. But it gives you an additional source of leverage

and you would essentially be unbinding yourself as Congress has an institution for the mass moving closer to majority rule for those measures and getting rid of some of those barriers the same way the war power resolution does

for concurrent and joint resolutions. I will say, these are highly speculative. I don't know whether either of these will strictly be German. I suspect there's good arguments why they wouldn't be,

but it's not 100% clear to me. At least in the house, we have where we have some more information about Germanist applications and standards.

They basically say, well, if you are basically serving

the same fundamental purpose and you're trying to do it the same way through a very closely related measure,

“which I think these arguably are could be,”

then yeah, you can actually, that's considered German, you can mend things that way. So I don't think, I think it's at least a possibility. I think it might be worth asking the Senate parliamentarian about that's all creative uses.

We don't know if the political will there is there for the Senate and/or the house to do that, but it's illustrative of the fact that you have a lot of these toolkits here. And if we begin thinking about ways Congress can use them,

even though they may not have done it in the past, there are ways you might be able to use them to branch it up the pressure on the executive branch a little bit more than you would otherwise. And I think both of those measures,

if you're able to get them through the Germanist assessment and actually get amendments and get them to be part of those concurrent resolutions, those would be pretty dramatic escalations of pressure. But even if you don't quite that far,

other measures I think can have some more effects. - Taking into account all of the caveats that you just gave, let me spell out what the sort of maximalist best case scenario might be for the sort of thing.

So, and tell me if I have all of this correct, again, setting aside all of the caveats, go with your most optimistic self. The Senate and the House of Ariana Concern resolution, the German amendments to it include a lot of explicit statements

about what Congress does approve, doesn't approve creates some clear assessment of the ways in which Congress believes the president has already violated the war powers resolution and is otherwise acting unlawfully.

They also add an amendment authorizing Congress to bring a lawsuit. They also amend their own rules to include new procedural paths, expedited paths, whatever to further restrict or push back

on presidential power, things like creating a hard funding cut off for hostilities. Those could then also be attached to major mass-pass legislation like the National Defense Authorization Act and thus Congress has really flexed its muscle through these

quite unusual and somewhat untested routes. Does that all sound right? - Yeah, I mean, from the perspective of if that would Congress

wants to do a critical mass-class ones to do

is to put maximum pressure on the executive branch to come to Congress for authorization or end hostilities and Iran with certain carve outs again around defensive activities, then like that's,

“I think the full picture of the pressure,”

they'd be able to bring to bear through the concurrent resolution process, which is something we really haven't seen done up to this day. Again, parts of it are hypothetical. I'm not sure all of it's 100% there,

but I'm not sure it's not either. And as far as we're entering this untested territory in the Senate about how concurrent resolutions will be handled through this process, you know, these are questions I would raise

and points I would explore a little bit because we don't know what the outer parameters of this process are and some of these things may well end up within scope of it. - Yeah, I think that's a great place to leave it.

I mean, we are in a moment where the executive branch

of its authority, and it might be an interesting time

for Congress to do the same. Thank you so much Scott for joining us. - Thanks for having me.

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