[MUSIC]
>> Hey, it's Katherine Fampillo from Laugh Fair.
“You might know me from tracking government on compliance”
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“The truth is all these statutes, and particularly the more pressures there's maybe”
a little more vulnerable than others, have all statutes have kind of require interpretation to be understood. The question is, you know, who gets to interpret and how stable do those interpretations need to be? I'm not only Orpa, executive editor of Laugh Fair, with my colleague, Laugh Fair's senior editor, Scott R. Anderson.
But all of these kind of nuances, while there's a lot of inconsistencies with the Trump administration
is doing, they don't always abandon them much, because the only entity who's view of
the war power resolution matters right now is the executive riches. Today we're talking about the war power's resolution, the law that's supposed to limit the president's power to wage war, and what it means for the U.S. conflict in Iran. So we are here to talk about the U.S. war in Iran from a very specific angle, which is how U.S. domestic law comes into play, and specifically we're talking about the war
power's resolution, which you recently wrote about in an article we publish in Laugh Fair. We are at a moment of particular interest to the war power's 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 power's resolution in a bit.
But can you just start by telling us what is the war power's resolution and what does it say? Absolutely. So the war power's resolution is a statute enacted by Congress in 1973, an act by a super majority of Congress that overwrote a veto by President Nixon.
In an effort to, as described by the sponsor, 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 and more of a role in decisions regarding the use of military force. And this is all being done, of course, in the aftermath of Vietnam War and related hostilities
in Cambodia and elsewhere, South East 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 power's resolution has been enacted, it's just over 50 years old. Now, it's coming to a lot of criticism, mostly in that it's ineffective.
That people argue, look, the statute has really become a bit of a debt letter. President's 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 which war power's 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 power's resolution, and particularly that it has at other points than 20th century prior to its enactment. And so it gets a little bit of short shrift. And a lot of ways, frankly, the debate over the Iran conflict, actually think it's a very useful
if we step back a little bit and view it from more in academic lens, it's a useful sort of case study in how the dynamics around the war power's resolution operate. And in this particular historical moment. OK, great.
“So I think you know, 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 super majority in Congress thought that things were out of whack and the
President had too much power.
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 does appropriate to commit U.S. military troops
to the U.S. of force.
“How does it try to get there to accomplish that goal?”
The war power resolution really does a lot of different things. But the provision that is most relevant to the Ronda Bay in a lot of ways, it's the core or one of a handful of core operational operative provision, the war power's resolution, is what's generally known as the 60 day clock. This is a time limit, the war power's resolution puts on the president's authority to
use military force. The war power 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 right later wrongly.
What it does say, however, is that A, and this is in section 4A1 of the war power's resolution, it says that where the president introduces U.S. armed forces into hostilities or, and this
“is important, into situations where imminent involvement of hostilities is clearly indicated”
by the circumstances, basically meaning you're, you're there's good chance to 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. In less Congress has authorized the U.S. 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 cut-off provision is section 5B of the war power's resolution. It also says that the president actually has the option to extend the 60-day window, kind of at 62-day window, because you kind of get the first 48 hours before the reports officially
do. It takes 10 that by an additional 30 days, if the president's willing to certify to Congress
and 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 60-90-day cut-off at this particular point. OK, 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 requirement, 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 4A1 did the Trump administration notify Congress within 48 hours as it was required to do when we first went to war with Iran. It did, or it got very close to least, on March 2nd, it filed a report with Congress.
But since it's 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 explains 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 a 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 it's being provided under Section 4A1, which is a little bit notable, because in the past, prior presidential administrations, has sometimes tried to be ambiguous as to whether it's submitting a 48 hours report to Congress under 4A1, 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, in theory, keeping that ambiguity, the 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 cut off 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, the United States and Iran, were in for much of the ensuing, except weeks after that February 28th date when the military activities commenced. Instead, in a letter, President Trump provided to Congress last Friday, I may first, 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 to start it on February 28th,
Essentially says that those hostilities have ended as a result of the ongoing...
and therefore, specifically, it says they have terminated, and that use of termination,
“I don't think it's a coincidence, it's very clearly saying, the requirements of the 60-day”
clock have been met. 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 four, 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?
Well, the use of the language hostilities, the fact that the May 1st letter basically
concedes hostilities started on February 28th, is in a case where it was a, is acknowledging a 4a1 situation. 4a1 applies whenever a troops are inserted into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances. So, you're saying there were hostilities and U.S. forces were there, that's a 4a1 situation. The other possibilities are 4a2 and 4a3, they essentially require 40 out, or 8-hour reports,
where the president deploys U.S. troops when equipped for combat, into the territory airspace or waters of a foreign nation, where there's some exceptions for training and supplies, the mission of the stuff like that, or if the president substantially enlarges the number of troops to already deploy in particular, that's that's subpronged three. In theory, maybe you could have seen a report under 4a2, for example, when they send military forces
if they were to send them in the Iranian territory or waters, but at the point where you can see there are ongoing hostilities, it's hard to argue this is in a 4a1 situation. Notably, Congress actually amended these reporting requirements in 2023, through an amendment to the NAA, to add an additional 48-hour reporting requirement.
That basically says any use of force by U.S. 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 power's resolution, and this is a bit of a housekeeping exercise.
“I think my Congress, to say we want to know if there's an exchange of fire,”
if there's other sort of hostile incident involving U.S. forces, even if you might be able to technically read 4a1, 2 and 3 to not require it. Compliance with a new reporting obligation is something that's a little unclear to me, in part because, while the 4a1, and generally 4a reports, are traditionally made public, usually on the White House stock-up website, and they're kind of assembled with other presidential documents and, and spurred 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. 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 hostility as 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, and so that's the 60 days,”
you know 60 days, even specify a 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 preview this a little bit. The terminology is introduced.dot.dot 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 a 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 van. Sure, so section 5b says the president and directs the president to terminate
Any use of U.
of file for a one report. And then in for a one, that's where that has a language reciting,
which is hostilities or a situation where hostilities, imminent hostilities are suggested by the circumstances. I'm paraphrasing, so I have a directly in front of me. Those two situations that really come down to that core question of hostilities and what does this mean. The legislative history, the war powers resolution, very clearly suggests that the authors of it change from,
“I believe, was originally armed conflict in some earlier address, two 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 like, 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, a circumstance that's suggesting there are is a serious risk there. I think executive branch has been kind of on the books about that. But over the subsequent five decades or so of practice, we see an 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 for a one
“obligations and then do not give rise to the 60-day clock. The Trump administration,”
notably actually isn't leaning on this four-operation epic fury. Again, its may first letter says, "Operation epic fury, we're hostilities and 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's starting April 7th because there's been no exchange of fire with Iranian forces since that. That actually is cease to be true since May 1st. But it was true evidently up until May 1st.
So they said essentially this period is ended. Instead with its appears to be to me is something like an interim, 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 in subject to their own distinct 60-day clock. The clearest most recent example of this we have is the Biden administration targeting Iran back militias in Iraq and Syria.
“Each time that happened, which the Biden administration did under the president's article”
to authority without statutory authorization, at least a half dozen times, or the first few years of the administration, the president would file a new for a one report and say hey, we just took this military action. But each time treated as a different incident of hostilities with its own 60-day clock to start a clocking down, which would then restart if there's another incident of hostilities there. Their, 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 criticized them
for us suggest that what we're hoping this is will never happen again. This is not repeatable.
This is a one-time military response to usually an attack by these forces on U.S. 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. 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 that it hasn't shown up. There's, there's this argument, as you say, that Operation Epic Fury, which the government conceded, was hostilities for the purposes of the war power's 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 in 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 whenever 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? Sure. So there's two sets of military activities that are both still happening after the May 1st letter was submitted and have 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 pres...
clearest question mark about how exactly you square this with the legal framework. But then on
May 4th few days after that letter, after the 60 day period of lapse, the Trump administration briefly, because it's now been suspended again, kicked off this project freedom endeavour, which is a pretty serious maritime operation consisting of at least by at least in Combs Count over 15,000 U.S. military personnel and 100 different vessels aimed at providing security to commercial vessels seeking to transit the straight of her moves consistent with their national
law. The straight of her moves 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 at the other end of the straight and the Middle
East essentially. This operation is interesting in two regards. One, you are right. They timing
of it. The fact that they waited to start this until after the 60 day period of lapse 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 a spokesperson at the White House the other day was most pointed on this. He said essentially, "We don't shoot until it last somebody shoots at us."
“That actually fits into another branch of practice executive branch as occasionally,”
not including for kind of similar maritime operations, notably in the Persian Gulf during the Iran or Iraq War and in the proximity of Yemen and the Red Sea during the post Gaza conflict. The kick off of the Gaza conflict when the Houthis were attacking maritime traffic to kind of a pressure on the international community around that conflict and the Biden administration intervened there. In those cases, both the administrations hinted at and a couple of legal opinions issued
by the executive branch of various points have stayed a little more expressly. The view that, well, look, when more sending vessels in international waters or otherwise sending U.S. forces to act in ways that are consistent with international law, in 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 kind of regular activities
or totally acceptable activities and somebody's attacking them. So, if the language and the war process, looking at triggers or pornography when the president chooses to do someone in hostilities, doesn't apply the same situation when hostilities arise at innocent U.S. 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 a 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 in your view, in the view of much of the international community as, you know, ships, including U.S. military vessels trying to transit the straightive or moves would be, you know, you know, the Iran has been very, very clear. They intend to act
respond in a hostile manner with the use of force. And so I think this argument has a bit of a stretch. But there is, 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 a high hasn't filed a 401 letter. If you are leaning into those presence, we're just sending 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 401 letter because it'd be undermining your own argument as to why 401 and the 60-day clock don't apply. Yeah. So even though I agree with you entirely that this is probably an extension of previous administrations, legal arguments, and four days into
interpretation of these potentially vague terms, I want to pause for a second on what those interpretations
have been, right? Because we'll get to it later. But there's, 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 the statute that introduction to hostilities meant that it was, it was limited to instances in which the president, you know, 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 hostilities.
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, and wondering what you make of the legal argument itself, notwithstanding the fact that previous administrations have made it. It's a fair question. I don't recall in the Legislative History, which I've read a great deal of, although it took us a bit quite a while, a specific
discussion of a situation like this where you have the president, you know, knowingly putting U.S. forces under a potential threat of armed attack, but in doing something that's like relatively innocent and conventional, because it's with international law and other sort of requirements.
“I do think there may have been discussion. I think this was early in the Warp Hours resolutions”
application when there was this dialogue between Congress and the executive branch about like how are you going to interpret this? Where I do think, if I recall correctly, some of the U.S. government officials representing how the executive branch interpreted this, did kind of put forward this suggestion. Hey, you know, if U.S. forces just come under attack unexpectedly, that's not introducing
anyone in anything that doesn't comply. And I don't actually recall, because 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, off to legal counsel opinion, where that argument is kind 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 around Iraq War in 1988, if I recall correctly. And then there's media reports suggesting this is part of the theory of the Biden administration
relied on, although we don't actually have like a concrete statement from the Biden administration about how exactly to approach the Warp Hours resolution this context, at least not that I'm aware. So we have these different threads of this evolution, but you know, the whether it's a line
“with original intent, not really clear. The truth is all these statutes, and particularly the”
Warp Hours resolution is maybe a little more vulnerable than others, have all statutes have kind of require interpretation to be understood. The question is, you know, who gets to interpret and how stable do those interpretations need to be? And that kind of folds into the enforcement question around the Warp Hours resolution, who gets to enforce it and to what extent does it still have that kind of constraining capacity? Well, it's almost like you host podcasts as well,
because you anticipated my segue, which was into the question of enforcement. So we have these different interpretive fights. I should say, or I could say, or deliberations over the course of history since 1973. Then there's the separate question of to what extent the legislation can actually be enforced and what that might look like. So you talk about this quite a bit in your piece, and I want to just go through the different ways that you talk about what that might look like,
because it's not always as obvious as one might think when considering how other statutes
are enforced or there's sort of, you know, the FBI investigates, and there's an indictment, et cetera, et cetera. So talk to us about what enforcement looks like, and let's start first in the courts. If someone wanted to bring a case challenging the administration arguing that it has
“not effectively complied with the Warp Hours resolution, would that work? Would anyone have standing?”
How do you assess the possibility of this getting into the courts? Yeah, it's a really good question. Before I do it, let me let me circle back and address because I don't want to forget it for even fun 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. I was like a case study of some of the challenges about how to enforce and understand the Warp Hours resolution.
So the blockade is the part of the military operation that's still ongoing today, and that was still ongoing over the course of the ceasefire, so during the 60-day period.
The Trump administration, I think we asked them would basically say, look, the blockade A,
maybe the blockade is separate. B, I think they would argue with the blockade, isn't hostilities. They strongly suggest that, and they're made first letter, because they say what we haven't had in exchange of fire since April 7th, and the blockade didn't start totally with April 13th. Notably, however, you actually have had cases where US forces have had to use force to enforce the blockade, clear as one occurred on April 19th, they shot an Iranian flag, to vessel to disable its
engine, and then the Iran Marines board it. A little different, because the US Marine, you've permeated a Iranian flag, commercial vessel, but still there's obviously was force evolved. But more fundamentally, enforcing a blockade, something that's generally considered to be an act of war,
Centrally relies on the invent threat of imminent use of military force, and ...
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 prior 60 day clock of the first initiation, because there was no separate for a one 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 401 says. It's a situation where even hostilities is a possibility. It doesn't have to be actual hostilities, and even there's
the legislative history suggests Congress and Teter hostilities to encompass not just exchanges a fire, but something a little broader than that. 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 who's view of the war power resolution matters right now is the executive bridges. So one piece of this that's interesting to me, though, is as you've said, there's 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 power 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 those, do you think we can credit the notion that those are effectively unrelated for analytical
purposes? This really fundamentally gets to the extent to which you can interpret the war power
's 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 an exists? And what constitutes one hostilities versus multiple independent hostilities, right?”
Or let alone, if you expand it to include as far as one does, situations, you know, where hostilities may be imminent. It's complicated. Now, this is a unique to the 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 presence authority under the take care clause, and it's well established that the president has the authority
interpret the law. And then if people disagree with it, they they sue and court step in and they correct the executive branch. And that's particularly true today, after the local bright decision a little more in the domestic context, obviously, where the Supreme Court has said, hey, look, previous Supreme Court gave the executive branch a lot of leeway in how it interprets statutes that are assigned a different agencies. And in fact, even a lot of them to change it substantially,
“we're rolling that back while we may, you know, take executive preuse 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 a one interpretation of statute, and that's it. And if that needs to change it up the Congress to change it, it's not up to the executive branch to adjust this interpretation. That is a philosophy that is hard to square with how the word price 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 our particular interpretation. Because the courts have been very reluctant to engage on war powers matters generally, and the war powers resolution specifically over the years. And the executive branch isn't bound to retaining a particular interpretation instead,
it is free to adopt an adapt interpretation until the courts come in and fix an interpretation for it. And that's a privilege. It is used quite liberally in filling out the contours of how the war powers resolution applies in a way that has allowed it to maintain different military operations that otherwise may have faced a legal hurdle from the resolution. 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 to 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.
national security practitioners, is that the courts will never touch the war powers resolution.
Because they, every opportunity they've had, they have generally refused 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 moodness right, especially because time has passed and the circumstances are 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 of 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, you know, advising to insurgents in El Salvador to quote, you know, one case from the 1980s, the constitutes hostilities triggering section for a one 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. I wrote a choir a lot of awkward fact finding around this sense of nests, gritty space, we're not going to engage in that. Now, I should know, these are all lower courts.
Supreme Court never has really gotten to up to these matters. Usually, these are district courts
occasionally in Pellacourt's wagon. And when federal courts said similar things about prewar power of resolution debates over the Vietnam war about whether the next administration had authority to pursue hostilities and things like that, the usual argument that gives that, well, there are, 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 view 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 is deployed most often, we've seen this Supreme Court the Roberts Court, although a prior iteration of it, really sees on and kind of
superpower in a way. In a 2012 Supreme Court decisions, if a tossing be 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 war in a 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, not at least the way I've been applied by lower courts in various cases with a lot of relevance to the foreign relations and where powers, context. If you take that here, that would suggest that if you have a clear indisputed conflict between the executive branch and Congress, that's a sort of case where courts
maybe should take us up or maybe a war 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 did exist in the scale of military operations, right? It's conceited hostilities that for a one was triggered. The question now is simply, well, have those hostilities or the situation implying hostilities,
like the imminent hostilities, has that situation wound up? And given the ongoing embargo, I think there's actually like a little bit 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 appears to create with Congress, and there are things Congress can do that to hypercharge and accentuate that
conflict, right? If it chooses to, although it hasn't done that yet, the more likely courts actually, I think make it involved, despite all the things perfectly against them. And I think the executive
“branch agrees with that, because that's why you see the executive branch still complied with the”
war powers resolution in its own vision of it, and 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 let's at 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. 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 off-the-war powers resolution really cared about, ...
ground deployment involving ongoing hostilities. Where the executive branch has pursued large-scale military interventions that has in Grenada and Panama, in other cases, it's wrapped them up within 60 days. There's an 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 it,
“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 processes I recall for this dark 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, you know, it does, at the same time, acknowledge the executive branch that's a lot of leeway about things short of that, where it can come up with a colorable argument about how something's consistent with 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, I won't. I think there's still limits on how far
it generally is willing to push it. 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 the sort of challenge in court? So, that's a really hard question. The people who usually sue over the war powers resolution are legislators, and we can be pretty confident legislators don't have standing, at least
free standing. In fact, that's been well confirmed by law records, and there's been court case rain sweeper that makes that pretty clear. There is an argument under rain sweeper 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 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 the House or the Senate who could vote it down, you might need to be both because of some weird ways how we can see of the affected actor in terms of legislative standing, but the minimum threshold we would be a majority of one chamber, 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 car right now, though 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 known as well enough our 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, though a standing wasn't quite as scrutinized than as it is today. We see at least one district court judgment agree that a still dread standing to sue
to over the accumulation of military force and Middle East and advance in the first call for war.
And then in 2016, we had the Smithfield Mama later, Smithfield Trump case, where a service member was challenging the legality of US military intervention in Syria. And there, the judge actually really, 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, and said he was saying, well, I have a duty and a desire to be confident that I'm acting
“because that's what the rule was. I was very esoteric, unfortunate standing argument that lost.”
But the judge that actually in pretty unequivocal terms, look, I think all of this line of cases for Vietnam suggesting service members have standing to sue and to challenge legality of the deployments is probably well-founded and reasonable, even though she, the judge in that case, didn't rely on it. It's not open to 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 their 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 Dovi Bush during the second Bush administration or the Pujor's 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, was the first circuit who ruled on this, didn't rule that they did have standing, but refused rule that they didn't have standing. They resulted on other grounds. And I suspect that's because it's actually kind of a tricky wicked as to whether a family member might have standing, depending on the circumstances of the service member or the nature of their enrollment, how you can see 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.
Another possibility states have had a huge amount of luck establishing standing in a variety of
others public interest circumstances because states have such a wide and diverse array of interests. And some of those interests, you could see it affecting by or effort. So like an example that I
“have been pointing to, I don't think it's there tight, but I think it's a, it's a possibility,”
is the idea that in California, 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 binding mean Nebraska. It's been quickest a few years ago. That sort of harm is the thing that can get 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 when 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 parties have 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 these say any of these are like 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 prior to resolution, but still compliance with it, I think is an indicator that there's at least an understanding there's an outside
a risk of litigation, and that's something the executive branch would be better off avoided. 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 the sort of enforcement puzzle that you talked about in your piece, which is admittedly less often the thought of as enforcement, but is what Congress can do outside of the possibility of certain members of Congress bringing
a 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 administration's? This is really the enforcement tool that I think”
comes and play more often, and it is in terms of activity. It's one that blends in with the political realm. 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, that they're intermingled, obviously, but in this case, I do think the legal consideration is due feed into these political considerations. They provide additional points of reference.
Generally speaking, the war pressure resolution does give Congress kind of a tool or kind of two tools they can use to take action where the president won't. The original war
pressure resolution had provisions, basically saying if Congress enacted a concurrent resolution
that they 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 and be involved in. That structure, which is known as a legislative veto, was drawn into constitutional question by Aspen Quirgase 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 joint resolution. A joint resolution is essentially a law. So if it's enacted, it has the full force of law as Aspen is a war pressure resolution itself, unlike concurrent 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 pressure resolution, that would require 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 could do over the filibuster barrier that's usually a barrier to the Senate taking action. So you can
move the measure to have a committee to the floor and then to a final vote on a simple majority basis. But if you enact it and the House has to enact it, they pass it together. If that happens
The president vetoes it, which is very likely and is what happened with enter...
Trump administration, or regard to resolutions on Yemen and Iran, then to override that veto, you need support from two thirds of the House and the Senate. And that is a super majority 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 the side aspect chart of decision from 1983 and joint resolutions will certainly be vetoed and are very unlikely to override a presidential veto, not impossible, but very unlikely. Nonetheless, we see them debated all the time because they're useful political tools because they allow a, sometimes a single legislator to introduce these enforce at least one procedural vote on them. And in doing so,
if 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 see eight different”
resolutions introduced and all fail on that first procedural vote, or guarding Iran, six joint in the Senate to concurrent in the House as of the time of courting. 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 and active by the 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 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 resource recess when Congress usually checks out.
This is to the tune of a hundred billion dollars, 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
“crest procedure, I believe these are all considered discretionary funds, meaning that'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 where have reservations about this conflict to put particular terms and set conditions on their support for any sort of package in the end. This is in the past, this sort of omnibus legislation is
how we've seen most national security related restrictions get imposed on which there've been a lot in the last few years, particularly in relation to President Trump if I'm being honest, and they usually
it's not going through it's on the bus 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 see a lot of leverage to be for certain people to be extract certain conditions. The flip side of it, the risk of it, is that at the same time, sometimes enacting operations in support of an ongoing military operation will be understood to be implicitly authorizing again. The war price 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 war price resolution is probably unconstitutional, it can establish presumption against authorizing something implicitly through appropriations but can't bar it. And importantly, like even after the war price resolution, even after the courts have occasionally looked at the fact that Congress has kept
appropriating funds for ongoing military operation knowingly as funds will support it. And it's said, yeah, maybe there's a legal debate here about whether this is consistent with the Constitution and the war price resolution, but Congress hasn't picked a fight over this, and they've looked at the continuation 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 the most sharp enough and establish sanctions for them. And then at the minimum, Congress has to think about, well, do we want to be understood to be authorizing this? Maybe they want to have expressed provision in their saying, nothing of this author, 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 eruption, 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 like it's 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 on the bus legislation that provides similar opportunities. And so you could find restrictions and other things
Snapped into those.
because if the executive branch is understood to be bucking the war powers resolution to
“aggressively in a way that irritates members of Congress and some even Republican members of”
Congress have objected with the Trump administration. It's been doing recently. That adds fuel to the fire for Congress somehow reigning them in the future through conditions at these moments of opportunity where Congress has the leverage, because it would be very hard for President Trump to veto any of this legislation, and we'll probably have to accept conditions and limits on his authority. So long as we're short, a lot of this dance around the war powers resolution, the motivation
for compliance, it fits into this big political process. Law and politics are very much integrated and this particular 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. 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.
Yes, with some coffee, 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”
and the experience with it does demonstrate Congress can wield a lot of power in the space. Part of the reason, nor part of the resolution isn't more constraining as because Congress has written it in a more loose fashion, the executive branch is capitalized not, 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. All right. Well, I think that is a great place to leave it. Scott, thank you very much for the excellent piece in Laugh Fair, and thank you for joining me. Thank you for having me.
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