Lawfare Daily: What the War Powers Resolution Means for Iran

[Intro]

Katherine Pompilio:
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matter.

Scott R. Anderson:
The truth is, all these statutes, and particularly the War Powers Resolution
may be a little more vulnerable to this 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?

Natalie Orpett: I’m
Natalie Orpett, executive editor of Lawfare, with my colleague, Lawfare
Senior Editor Scott R. Anderson.

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 matter that much because
the only entity whose view of the War Powers Resolution matters right now is
the executive branch’s.

Natalie Orpett: Today
we’re talking about the War Powers 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.

[Main Episode]

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 Powers Resolution, which you recently wrote about
in an article we published in Lawfare. We are at a moment of particular
interest to the War Powers 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 Powers Resolution in a bit, but can you just start by
telling us what is the War Powers Resolution and what does it say?

Scott R. Anderson:
Absolutely. So the War Powers Resolution is a statute enacted by Congress in
1973 enacted by a super majority of Congress that overrode a veto by President
Nixon in an effort to, as described by the sponsor of 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, more of a role in
decisions regarding the use of military force.

And this is all being done, of course, in the aftermath of the
Vietnam War and related hostilities in Cambodia and elsewhere throughout
Southeast 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 Powers Resolution’s been enacted, it’s just over 50 years
old now, it’s come under a lot of criticism, mostly in that it’s ineffective,
that people argue, “Well, look, the statute has really become a bit of a dead
letter.”

Presidents 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 to which the War Powers
Resolution actually has had an impact in tempering some of the executive
branch’s potential moves it could make some of the discretion it could exercise
in the absence of the War Powers Resolution and particularly that it has at
other points in the 20th century prior to its enactment, and so gets a little
bit of short shrift.

And in a lot of ways, frankly, the debate over the Iran
conflict, I actually think is a very useful—if we step back a little bit and
view it from more an academic lens, it’s a useful sort of case study in how the
dynamics around the War Powers Resolution operate in this particular historical
moment.

Natalie Orpett: Okay.
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.

I think that will resonate with people right now because 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
is appropriate to commit U.S. military troops to the use of force.

How does it try to get there to accomplish that goal?

Scott R. Anderson:
The War Powers Resolution really does a lot of different things, but the
provision that is most relevant to the Iran debate, in a lot of ways it’s the
core or one of a handful of core operational operative provisions of the War
Powers Resolution, is what’s generally known as the 60-day clock.

This is a time limit the War Powers Resolution puts on the
president’s authority to use military force. The War Powers 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’s something that
might happen rightly or wrongly.

What it does say, however, is that A, and this is in Section
4(1) of the War Powers Resolution, it says that where the president introduces U.S.
armed forces into hostilities or, and this is important, into situations where
imminent involvement in hostilities is clearly indicated by the circumstances,
basically meaning you’re, there’s a good chance you’ll 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, unless Congress has authorized the use of military force or there’s a
certain other contingency that has a contingency for if, for example, Congress
is unable to meet.

And then notably, it actually and this is all, I should say,
that latter cutoff provision is Section 5 of the War Powers Resolution. It also
says that the president actually has the option to extend the 60-day window,
kind of a 62-day window ’cause you kinda get the first 48 hours before the
report’s officially due, to extend that by an additional 30 days if the
president’s willing to certify to Congress in 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 to 90-day cutoff at
this particular point.

Natalie Orpett: Okay,
great. So let’s unpack those two separate provisions by looking at what’s been
going on with the, this conflict or purported conflicts, in Iran.

So with respect to the notification requirement, the s- 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 4(1), did the Trump administration notify Congress within 48
hours as it was required to do when we first went to war with Iran?

Scott R. Anderson: It
did, or it got very close at least. On March 2nd it filed a report with
Congress that’s since 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 gonna last or what they’re gonna consist
of.”

We know now that it was pretty significant from the outset.
Notably, that letter says it’s being s- consent to Congress consistent with the
War Powers Resolution, but doesn’t specifically say it’s being provided under
Section 4(a)(1), which is a little bit notable because in the past, prior
presidential administrations have sometimes tried to be ambiguous as to whether
it’s submitting a 48 hours report to Congress under 4(a)(1) or under one of the
other provisions of 4(a), which also require 48-hour reports but don’t start
the 60-day withdrawal clock or termination clock.

And so, you know, in theory, keeping that ambiguity, that could
have allowed them pres- to preserve an argument saying, “Yeah, we filed that
report consistent with the War Powers Resolution, but it wasn’t a 4(a)(1) report
so we’re not subject to a 60-day cutoff 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 to, for it to make really given the
c- scale of armed conflict that the United States and Iran were in for much of
the ensuing weeks after that February 28th date when the military activities
commenced.

Instead, in a letter President Trump provided to Congress last
Friday, May 1st, which is the end of the 62-day period, so the end of the
60-day clock plus the 48-hour notification window, it acknowledged that there
were hostilities that continued, that started on February 28th, but essentially
said that those hostilities have ended as a result of the ongoing ceasefire,
and therefore, and specifically it says they have terminated, and that use of
termination I don’t think is a coincidence. It’s very clearly saying the
requirements of the 60-day clock have been met.

Natalie Orpett: 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, 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 4, they could have theoretically, as
previous administrations have done, been arguing that, yes, th- 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?

Scott R. Anderson:
Well, the use of the language hostilities, the fact that the May 1st letter
basically concedes hostilities started on February 28th, is an indication that
it was a f- it is acknowledging a 4(a)(1) situation.

4(a)(1) applies whenever troops are inserted into hostilities
or situations where imminent involvement in hostilities is clearly indicated by
the circumstances. So if you’re saying there were hostilities and U.S. forces
were there, that’s a 4(a)(1) situation. The other possibilities are 4(a)(2) and
4(a)(3). They essentially require 48-hour reports where the president deploys
U.S.

troops when equipped for combat into f- the territory,
airspace, or waters of a foreign nation, where there are some exceptions for
training and supplies and missions and stuff like that. Or if the president
substantially enlarges the number of troops already deployed in a particular
area. That’s sub-prong three.

You know, in theory, maybe you could’ve seen a report under 4(a)(2)
for example, when they, you know, send military forces, if they were to send
them into Iranian territory or waters. But at the point where you concede there
are ongoing hostilities, i- it’s hard to argue this isn’t a 4(a)(1) situation.

Notably, Congress actually amended these reporting requirements
in 2023 through an amendment to the NDAA 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 4(a) of the
War Powers Resolution. And this is a bit of a housekeeping exercise, I think,
by Congress to say we wanna 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 4(a)(1),
(2), and (3) to not require it. Compliance with that new reporting obligation
is something that’s a little unclear to me, in part because while the 4(a)(1) and
generally 4(a) reports are traditionally made public, usually on the
whitehouse.gov website, and they’re kind of assembled with other presidential
documents and interspersed 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.

Natalie Orpett:
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 hostilities.

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 4(a), such that it triggered the 60-day limit.

Let’s switch over to that provision Section 5(b), I believe.

Katherine Pompilio:
Mm-hmm.

Natalie Orpett: And
that, so that’s the 60 days. You know, 60 days, even specifies 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 previewed this a little bit—The terminology is introduce
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 as sort of a safe harbor under that
same provision, but is rather saying no, we are in compliance with the 60 days.

Tell us a little bit more about what they are arguing in that
vein.

Scott R. Anderson:
Sure. So Section 5(b) says the president, and directs the president to
terminate any use of U.S. armed forces in regards to a situation that gave rise
to the obligation to file a 4(a)(1) report. And then in 4(a)(1), that’s where
that has the language you’re citing, which is hostilities or a situation where
hostilities, imminent hostilities are suggested by the circumstances.

I’m paraphrasing, so I don’t have it directly in front of me.
Those two situations, it really comes down to that core question of hostilities
and what does this mean? The legislative history of the War Powers Resolution
very clearly suggests that the authors of it changed from, I believe it was
originally armed conflict in some earlier drafts, to hostilities ’cause 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. The circumstances suggesting there are, is a
serious risk there.”

The executive branch has been kind of on the books about that.
But over the subsequent, you know, five decades or so of practice, we’ve seen
the 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 4(a)(1) obligations and then do not give rise to the
60-day clock.

The Trump administration notably actually isn’t leaning on this
for Operation Epic Fury. Again, its May 1st letter says Operation Epic Fury
were host- was hostilities. It doesn’t say 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 started on April 7th ’cause
there have been no exchange of fire with Iranian forces since then.

That actually has ceased to be true since May 1st but it was
true evidently up until May 1st. So they said essentially this period has
ended. Instead, what this appears to be to me is something like an interm-
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 and subject to their own distinct 60-day clock.

The clearest, most recent example of this we have is the Biden
administration targeting Iran-backed militias in Iraq and Syria. Each time that
happened, which the Biden administration did under the president’s Article 2
authority without statutory authorization at least a half dozen times over the
first few years of the administration, the president would file a new 4801
report and say, “Hey, we just took this military action.”

But each time treated it as a different incident of hostilities
with its own 60-day clock to start clocking down, which would then restart if
there was another incident of hostilities there. There, 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 criticize them for this, suggest that, “Well, we’re hoping this is—will
never happen again. This is non-repeatable. This is a one-time military response
to usually a, 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.

Natalie Orpett:
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 it
hasn’t shown up.

There’s this argument, as you say, that Operation Epic Fury,
which the government conceded was hostilities for the purposes of the War
Powers 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 an operation.

So I wanna 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 whatever you want to call it, use of troops, file a
notification in the 48-hour window that is required under 4(a).

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?

Scott R. Anderson:
Sure. So, so there’s two sets of military op- 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 presents the
clearest- Question mark about how exactly you square this with the legal
framework. But then on May 4th, a few days after that letter, after the 60-day
period elapsed, the Trump administration briefly ’cause it’s now been suspended
again, kicked off this Project Freedom endeavor, which is a pretty serious
maritime operation consisting of at least by, I believe, CENTCOM’s count, over
15,000 U.S. military personnel and 100 different vessels aimed at providing
security to commercial vessels seeking to transit the Strait of Hormuz
consistent with international law.

The Strait of Hormuz 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 a- and imports to and
from the other folks on the other end of the strait, the Middle East,
essentially. This operation is interesting in two regards.

One, you’re, you are right. The timing of it, the fact that
they waited to start this until after the 60-day period had elapsed 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 from 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 spokesperson at the White House the other day was most point
on this. He said, essentially, “We don’t shoot until, unless somebody shoots at
us.”

That actually fits into another branch of practice executive
branch has occasionally leaned on, including for kind of similar maritime
operations, notably in the Persian Gulf during the Iran-Iraq War and in the
proximity of Yemen and the Red Sea during the post-Gaza conflict the kickoff of
the Gaza conflict when the Houthis were attacking maritime traffic to, to kind
of put pressure on the international community around that conflict, and the
Biden administration intervened there.

In those cases, both administrations hinted at, and a couple of
legal opinions issued by the executive branch at various points have stated a
little more expressly the view that, well, look, when we’re sending vessels in
international waters or otherwise, you know, sending U.S. forces to act in ways
that are consistent with international law, and those forces come under attack
They have a right to respond in self-defense, but that doesn’t trigger Section
4(a)(1) 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. And
so if the language in the War Powers Resolution that triggers report obligation
when the president chooses to introduce someone into hostilities doesn’t apply
to the same situation when hostilities arise at, you know, 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 and the view of much of the international
community as, you know, straight ships, including U.S. military vessels trying
to transit the Strait of Hormuz would be.

You know, you know that Iran has been ve- very clear they
intend to act, respond in a hostile manner with the use of force. And so I
think this argument is a bit of a stretch. But there is, are those hooks in
executive branch practice that it looks like the Trump administration is teeing
itself up to lean on.

And those importantly might explain why it hi- hasn’t filed a
4(a)(1) letter. If you are leaning into those precedents where you’re saying, “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 4(a)(1) letter because it’d be undermining your own argument as
to why 4(a)(1) and the 60-day clock don’t apply.

Natalie Orpett: Yeah,
so even though I agree with you entirely that this is probably an extension of
previous administrations’ legal arguments and forays into interpretation of
these potentially vague terms, I wanna pause for a second on what those
interpretations have been, right? Because we’ll get to it later, but there’s a
separate question of to what extent it is possible to enforce the Wa- 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 this statute, that introduction to hostilities meant that it was
ins- 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?

It doesn’t include things like being in a situation where it is
likely to the, be the case that hostilities may arise. I mean, the inclusion of
Imminent hostilities would seem to answer that, but I just am wondering what
you make of the legal argument itself, notwithstanding the fact that previous
administrations have made it.

Scott R. Anderson:
It’s a fair question. I don’t recall in the legislative history, which I’ve
read a great deal of, although in some cases it’s been quite a while, a
specific discussion of a situation like this, where you have a 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 and
consistent with international law and other sort of requirements.

I do think there may have been discussion, I think this was
early in the War Powers Resolution’s application when there was this dialogue
between Congress and the executive branch about, like, how are you gonna
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 the 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, ’cause it’s 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 Office of 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 Tinker conflict
that was around the Iran-Iraq War in, in 19… I think 1987, 1988, if I recall
correctly. And then there’s media reports suggesting this is part of the theory
that the Biden administration relied on, although we don’t actually have, like,
a concrete statement from the Biden administration a- about, like, how exactly
it approached the War Powers Resolution in this context.

At least not that I’m aware of. So we have these different
threads of this evolution, but you know, the… whether it’s aligned with
original intent, not really clear. The truth is, all these statutes, and
particularly the War Powers Resolution may be a little more vulnerable to this
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 War Powers Resolution. Who gets to enforce it
and to what extent does it still have that kind of constraining capacity?

Natalie Orpett: 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 where 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 War
Powers Resolution, would that work? Would anyone have standing? How do you
assess the possibility of this getting into the courts?

Scott R. Anderson:
Yeah. It’s a really good question. Before I do that, let me circle back and
address, because I don’t wanna forget it before we move on ’cause I think it,
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 as like a case study of some of the challenges about how
to enforce and understand the War Powers Resolution.

So, so the blockade is the part of the military operation
that’s still ongoing today, that was still ongoing over the course of the
ceasefire, so during the 60-day period. The Trump administration, I think if
you asked them, would basically say, “Look, the blockade, A, maybe the blockade
is separate. B, I think they would argue, well, the blockade isn’t hostilities.”

They strongly suggest that in their May 1st letter ’cause they
say, “Well, we haven’t had an exchange of fire since April 7th,” and the
blockade didn’t start till, I believe it was April 13th. Notably, however, you
know, you actually have had cases where U.S. forces have had to use force to
enforce the blockade.

Clearest one occurred on April 19th. They shot an
Iranian-flagged vessel to disable its engine, and then you had Marines, U.S. Marines
board it. A little different ’cause a U.S. Marine… pardon me, an
Iranian-flagged commercial vessel but still, there’s… Obviously was force
involved. But more fundamentally, enforcing a blockade, something that’s
generally considered to be an act of war, centrally relies on the immi- threat
of imminent use of military force.

That’s how you get ships to comply with it. So it’s very hard
in my mind to argue that- Starting the blockade was not a situation suggesting,
you know, the imminent possibility of hostilities and that, that therefore it
doesn’t fit into at least the prior 60-day clock of the first initiation
because there was no separate 4(a)(1) letter filed about it or any other
suggestion that somehow this should be considered separately.

Read more Lawfare Live: The Trials of the Trump Administration, April 17

But even if it did, that, 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 4(a)(1) says. It’s a situation where imminent hostilities is a
possibility. It doesn’t have to be actual hostilities. And even there’s… The
legislative history suggests Congress intended hostilities to encompass not
just exchanges of fire, but something a little broader than that.

But all of these kind of nuances, while there’s a lot of
inconsistencies with what the Trump administration is doing, they don’t always
matter that much because the only entity whose view of the War Powers
Resolution matters right now is the executive branch’s.

Natalie Orpett: So
one piece of this that’s interesting to me, though, is, as you’ve said, there
are 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 Powers 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?

Scott R. Anderson:
This really fundamentally gets to the extent to which y- you can interpret the
War Powers 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 and exist? And what
constitutes one hostilities versus multiple independent hostilities, right?

Or s- let alone if you expand it to include, as 4(a)(1) does,
situations, you know, where hostilities may be imminent. It’s complicated. Now,
this isn’t unique to this 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 however else they’re applying
interpreting law.

That’s part of the president’s authority under the Take Care
Clause, and it’s well established that the president has the authority to
interpret the law. And then if people disagree with it, they s- they sue, and
courts step in and they correct the executive branch. And that’s particularly
true today after the Loper Bright decision, although more in the domestic
context, obviously, where the Supreme Court has said, “Hey, look-” Previously,
the Supreme Court gave the executive branch a lot of leeway in how it
interprets statutes that are assigned to different agencies, and in fact, even
allowed them to change it substantially.

We’re rolling that back. While we may, you know, take executive
previews on board, in the end, statutory interpretation is a job for judges and
the courts, and we’re gonna do it, and we’re gonna adopt one interpretation of
statute, and that’s it. And if that needs to change, it’s up to Congress to
change it.

It’s not up to the executive branch to adjust its
interpretation. That is a philosophy that is hard to square with how the War
Powers Resolution is approached. And the main reason really gets back to this
enforcement concept, is just to say, maybe there’s five or 10 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 a 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 and adapt interpretations until
the courts come in and fix an interpretation for it, and that’s a privilege it
has used quite liberally in fleshing 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.

Natalie Orpett: Yeah,
and I will just note, the War Powers Resolution is not the only statute under
which this is happening, because this is how- By any means … 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.

Scott R. Anderson: So
the conventional wisdom is that, and particularly among 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 to
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, mootness ripeness, usually
because time has passed and the circumstances 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
alm- often right in most cases. But where I differ with some of these views is
that I do think there is an outside 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 this fight between the political
branches over whether or not, for example, you know, advising insurgents in El
Salvador, to quote, you know, one case from the 1980s, constitutes hostilities
triggering Section 4(a)(1) 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. It would
require a lot of awkward fact-finding around this sensitive national security
space. We’re not going to engage in that. Now, I should note, these are all
lower courts.

Supreme Court never has really gotten up to these matters.
Usually these are district courts, occasionally appellate courts weighing in.
And when federal courts said similar things about pre-War Powers Resolution
debates over the Vietnam War, about whether the Nixon administration had
authority to pursue hostilities and things like that, the usual argument they
give is 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’s an impasse between the political branches, that is a
situation where judicial review 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
seize on and kind of superpower in a way.

In the 2012 Supreme Court decisions of Atassi v. 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 just both interpret the statute and determine whether it’s
constitutional or not.”

That’s what they view as an impasse warranting 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 doctrine, or at least the way it had been applied by lower courts in
various cases with a lot of relevance to the foreign relations and war powers
context.

If you take that here, that would suggest that if you have a
clear, undisputed conflict between the executive branch and Congress, that’s
the sort of case where courts maybe should take this up or maybe were willing
to take this up. And in this case, it’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 e- easy for it to argue that
hostilities didn’t exist in the scale of military operations, right? It’s
conceded hostilities that Four-A-One was triggered. The question now is simply,
will have those hostilities or the situation implying hostility, like the
imminent hostilities, has that situation wound up?

And given the ongoing embargo I think there’s actually like a
little bit of 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 it appears to create with
Congress, and there are things Congress can do th- 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, may get involved despite all the
things prevailing against them.

And I think the executive branch agrees with that because
that’s why you see the executive branch still complying with the War Powers
Resolution in its own vision of it. It adapts these interpretations and it
adjusts its military operations. But in the end, it is changing things at the
sixty-day mark in a way that lets it 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 gonna get a lot of slack from
the courts, and we’re gonna lean into that slack, but we’re not gonna actually
push it to the brink.” And you know what 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 Austin War Powers Resolution really
cared about, which is a long-term ground deployment involving ongoing
hostilities.

Where the executive branch has pursued large-scale military
interventions, and it has in Grenada and Panama and 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’s what Congress was doing. They were just figuring out the process, as I
recall, for the historic 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 has a lot of leeway about things short of that, where it can
come up with a colorable argument about how something’s consistent with the 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 it won’t I think
there’s still limits on how far it generally is willing to push it.

Natalie Orpett: Yeah,
I think that’s a really interesting point. I wanna 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 this sort
of challenge in court?

Scott R. Anderson: So
it– that’s a really hard question. The people who usually sue over the War
Powers Resolution are legislators and we’re, we can be pretty confident
legislators don’t have standing, at least free standing. In fact, that, that’s
been well confirmed by lower courts, and there’s a Supreme Court case, Raines
v.

Byrd, that makes that pretty clear. There’s an argument under
Raines v. Byrd 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’ve been able to
dictate a legal outcome that would’ve 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,
you know, either the House or the Senate, I think a majority of the members of
either the House or the Senate who could vote it down. You might need to be
both because of some weird ways how we conceive of the affected actor in terms
of legislative standing.

But the minimum threshold you would need would be a majority of
one chamber or the other. 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 cards right now, although 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 acknowledged well enough, are
service members. Service members who are affected, I should say, specifically
by the given deployment.

Service members have repeatedly sued over the legality of U.S.
military actions in the Vietnam War. Nobody raised standing concerns, although
standing wasn’t quite as scrutinized then as it is today. We see at least one
district court judgment agree that a soldier had standing to sue over the
accumulation of military force in the Middle East in advance of the first Gulf
War.

And then in 2016, we had the Smith v. Obama, later Smith v.
Trump case, where a service member was challenging the legality of U.S.
military intervention in Syria. And there, the judge actually ruled that the
soldier didn’t have standing, but that was specifically because the soldier
refused to base his standing theory on the idea that he was afraid of being
injured or killed in combat.

Instead, he was saying, well, I have a duty and a desire to be
confident that I’m acting consistent with the rule. It was a very esoteric,
unfortunate standing argument that lost. But the judge said actually in pretty
unequivocal terms, look, I think all this line of cases from Vietnam suggesting
service members have standing to sue and to challenge legality of deployments
is probably well-founded and reasonable, even though the judge in that case
didn’t rely on it.

It’s not open and shut. There are counterarguments that you can
see deployed. And importantly, it’s like 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 the
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 as
Dovie Bush during the second Bush administration or the George 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 it was the First Circuit, who ruled
on this, didn’t rule that they did have standing, but refused to rule that they
didn’t have standing.

They resolved it on other grounds. And I suspect that’s because
it’s actually kind of a tricky wicket as to whether a family member might have
standing, depending on the circus- circumstances of the service member, the
nature of their enrollment, how you conceive of, you know, what is voluntary,
what is not, what soldiers are signing up for.

I, I think there’s barriers there, but I wouldn’t rule it out
as entirely as a possibility. Another possibility is states. States have had a
huge amount of luck establishing standing in a variety of other public interest
circumstances because states have such a wide and diverse array of interests.

And some of those interests you could see get affected by a war
effort. So, like, an example that I have been pointing to, I, I don’t think
it’s airtight, but I think it’s a possibility, is the idea that in California
and 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 by Navy-Nebraska Supreme Court case just a few years ago, that sort of
harm is the thing that can 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 run states like California and Virginia are at the
moment might have the political incentive to actually bring a challenge to
this, especially ’cause around this conflict, Democrats have been pretty
adamant that they’re opposed to this, whereas in prior conflicts, neither
party’s 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 in their political advantage. None of
us 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 than 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 Powers
Resolution, but still compliance with it, I think is an indicator that there’s
at least an understanding there’s an outsider risk of litigation, and that’s
something the executive branch would be better off avoiding

Natalie Orpett: Now
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 this
sort of enforcement puzzle that you talked about in your piece, which is
admittedly less often 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?

Scott R. Anderson:
Yeah, I mean, this is really the, you know, enforcement tool that I think comes
in play more often.

And it is i- in terms of an activity, and it’s one that blends
in with the political realm. And so 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, the,
the- they’re intermingled obviously.

But in this case I do think the legal considerations do feed
into these political considerations. They provide additional points of
reference. Generally speaking, the War Powers 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 Powers Resolution had provisions basically
saying if Congress enacted a concurrent resolution, that’s a 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 it may be involved in.

That structure, which is known as a legis- legislative veto,
was drawn into constitutional question by a Supreme Court case in 1983 after
the War Powers Resolution was enacted, although there had been some questions
about it even at the time the, 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 a joint
resolution.

A joint resolution is essentially a law. So if it’s enacted, it
has the full force of law as same as the War Powers Resolution itself, unlike
concurrent resolutions, which don’t. But joint resolutions have to be presented
to the president for signature and potential veto, which w- this kind of
weakens the framework substantially from the concurrent resolution structure of
the War Powers Resolution.

That would’ve required 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 get to over the filibuster barrier.

That’s usually a barrier to the Senate taking action. So you
can move the measure to out of committee to the floor and then to a final vote
on a simple majority basis. But if you enact it and the pr- and then the House
has to enact it, they pass it together. If that happens and the president
vetoes it Which is very likely and is what happened with, during the first
Trump administration in regard to resolutions on Yemen and on 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 this INS v. Chad, a decision from nineteen eighty-three, and joint
resolutions will most 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, ’cause they allow
a…

Sometimes a single legislator can introduce these, enforce at
least one procedural vote on them, and in doing so, 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, and we’ve seen eight different
resolutions introduced and all fail on that first procedural vote regarding
Iran. Six j- joint in the Senate, two concurrent in the House as of the time of
recording. 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 enacted by
Congress ’cause I can veto them,” that flips when the executive branch needs
something from Congress. And that is a moment that’s rapidly approaching, m-
precisely because of the dynamics and the immense cost of the Iran war.

The Trump administration has said it, it 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, who specialize in congressional
procedure, I believe these are all considered discretionary funds, meaning that
it’s not easy to do through reconciliation me- which is a clean party line
vote. Y- 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 who are, have reservations about this conflict, to s- put particular
terms and set conditions on their support for any sort of package in the end.
This in the past, this sort of omnibus legislation is how we’ve seen most s-
national security related restrictions get imposed, of which there have been a
lot in the last few years, particularly in relation to President Trump, if I’m
being honest.

And they usually get snuck in through this omnibus 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 appropriations in support of an ongoing military operation
will be understood to be implicitly authorizing it. The War Powers 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 the War Powers 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 Powers Resolution, even after the courts have occasionally looked
at the fact that Congress has kept appropriating funds for ongoing military
operation, knowingly those funds wouldn’t go support it, and has said, “Yeah,
maybe, you know, there’s a legal debate here about whether this is consistent
with the Constitution or with War Powers Resolution, but Congress hasn’t picked
a fight over this, and they’ve looked at the continued appropriations 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 gonna
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 them sharp enough and establish
sanctions for them.

And then at a minimum, Congress has to think about, well, do we
want to be understood to be authorizing this? Maybe they wanna have express
provision and they’re saying, “Nothing in 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, that might work,
which I think that actually would be taken on board by most observers. And the
last thing I’ll point about, I’ll say about this is that this supplemental
appropriation is the most immediate target for this sort of opportunity, 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 that gets 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 omnibus leg-legislation that provide
similar opportunities, and so you could find restrictions and other things
snapped into those. All this feeds back to the enforcement question about the
War Powers Resolution because if the executive branch is understood to be
bucking the War Powers Resolution too aggressively in a way that irritates
members of Congress, and some even Republican members of Congress have objected
to what the Trump administration has been doing recently, that adds fuel to the
fire for Congress somehow reining 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
lim– any of this legislation and will probably have to accept conditions and
limits on his authority. So long story short, a lot of this da-dance around the
War Powers Resolution, the motivation for compliance. It fits into this big
political process.

Law and politics are very much integrated in this particular
sort of discourse, and i- I think that’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.

Natalie Orpett: 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.

Scott R. Anderson:
Yes, with some caveats. Yes, I don’t wanna overstate the strength of it.

And this is a key point. Congress… The, I think the key point
away from this is that the War Powers Resolution, the experience with it, does
demonstrate Congress can wield a lot of power in this space. Part of the reason
War Powers Resolution isn’t more constraining is ’cause Congress has written it
in a more loose fashion, the executive branch has capitalized on it, 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.

Natalie Orpett: All
right. Well, I think that is a great place to leave it.

Scott, thank you very much for the excellent piece in Lawfare,
and thank you for joining me.

Scott R. Anderson:
Thank you for having me.

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