Opinion: If Pelosi doesn’t get her way, Trump will have almost unlimited powers to start a war with Iran

Image for post
Image for post

Lawmakers in Washington are voting today on a concurrent resolution to curtail President Trump’s executive powers under the War Powers Act of 1973. Although it’s unlikely to pass in the Senate, the bi-partisan legislation, if approved by both houses of Congress, wouldn’t require the president’s signature. Trump, who has been arguing he doesn’t have to seek Congressional approval for airstrikes on Iran, is clearly unhappy about the vote: in a press conference this morning, he repeated that “we have to protect presidential privilege” for the supposed good of America.

In a separate press conference earlier, House Speaker Nancy Pelosi lamented that the president’s choice not to inform Congress of his plans to engage in the airstrikes that killed Iranian General Qassem Soleimani last week, adding that the president’s decision wasn’t making America safer, and that “America and the world cannot afford war”. She also noted that her intentions were to avoid an escalation with Iran, and, in turn, avoid producing generations more of “veterans who are suffering”.

It’s important to bear in mind some context on the laws we’re talking about here.

Since 1812 and for 100 years after that, American presidents turned to Congress for their declarations of war in the manner that the framers intended for our democracy to work. But Harry Truman broke with that tradition when he sent troops to Korea during the Cold War without Congressional support.

John F Kennedy followed suit by sending troops to South Vietnam, and while Congress never officially declared war, a Congressional resolution allowed Lyndon B Johnson to send troops to fight the North Vietnamese. As a response to the fierce opposition to America’s presence in Vietnam back home, Congress passed the War Powers Resolution (or Act), which limited the power of the executive office to send forces into hostilities without Congress’s approval.

In , Congress voted to override Nixon’s veto against the War Powers Act, limiting the power of the executive office to send military forces abroad without prior approval from Congress. Nixon had argued that the Act limited his authority as the Commander-in-Chief of the Armed Forces.

The War Powers Act , which Congress is voting on amending today, allowed for the president to introduce US armed forces into hostilities without a Congressional declaration of war under specific circumstances, limited in duration and scope, and in accordance with specific rules.

First, the president is required to inform , in writing, the Speaker of the House and the President pro tempore of the Senate the reasons, authority, scope and duration of the introduction of armed forces into hostilities. President Trump argues he did this with a .

Under the existing terms of the Act, the president can deploy troops without Congressional authorization, but it must end after 60 days unless Congress votes to approve it during those 60 days. Congress, however, has the power to order the president to end the deployment of troops or other forces before the 60 days is up.

Legal questions about the scope of the Act didn’t end with Nixon or start with Trump. Over 120 reports have been submitted to Congress by past presidents in disagreement with the Act, including Presidents Ford, Raegan, George H W Bush, Clinton, and George W Bush.

Most recently, during the Arab Revolutions of 2011, the Obama administration attempted to eke out an exception to the rule that that US forces could continue to participate in the NATO air raids in Libya for more than 60 days.

Courts have traditionally avoided intervening in political disputes over matters of war and the separation of powers in the other two branches of the federal government. In 1999, a US District Court judge threw out a case against then-president Clinton for violations of the War Powers Act after he ordered US participation in airstrikes in the former Yugoslavia.

But with a conservative-leaning Supreme Court and sycophantic Trump supporters like Brett Kavanaugh on the bench, it’s entirely possible the Supreme Court would end up taking a case brought to it by the Justice Department on behalf of President Trump. If that were the case, Trump’s claims to nearly unlimited powers under the guise of executive privilege could be the start of a total disintegration of our democratic political system.

Congress has two unique opportunities before them to curb Trump’s complete disregard for his duties and responsibilities under the Constitution and the War Powers Act: today’s vote and the impending impeachment trial in the Senate. Republican Senators Rand Paul and Mike Lee saying they’re furious with the President’s briefing on the intelligence behind the Iran airstrikes indicates a growing frustration in the Republican party with the ineptitude of this administration. Unfortunately, it’s still unlikely to be enough for Congress to pass the amendments to the War Powers Act.

Will it take a war with Iran to convince other Republican Senators that Trump doesn’t have America’s best interests in mind? For the good of the American people, I hope not.

Originally published at https://www.independent.co.uk on January 9, 2020.

IHRL attorney & writer. Bylines in: PBS, USA Today, Independent UK, Al Jazeera, Romper, Ravishly, & National Catholic Reporter.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store