The Iran War demonstrates once again the limitations of the War Powers Act. The War Powers Act of 1973 mandates that the President has 60 days to end hostilities if there has been no Congressional authorization – though he can seek a 30-day extension. The same law gives Congress the ability to end hostilities by voting on a resolution to end military action, subject to Presidential veto.
This week the Senate voted in favor of a resolution invoking the War Powers Act to end the military campaign in Iran and requiring Congressional approval for any future conflict. The House passed a similar measure earlier this week.
The votes in Congress on these resolutions are nonbinding and largely symbolic. As concurrent resolutions they are not sent to President Trump for approval. If Congress did submit these measures to President Trump for approval, he would veto them, and Congress lacks the vote to override a veto.
President Trump has made his position on the War Powers Act clear, by simply ignoring these resolutions and berating Congress for passing them. He maintains that he can use executive powers to launch the War with Iran and to negotiate the Memorandum of Understanding, without first seeking Congressional approval. He stated that “I never thought about sending, but I will”. Indeed, President Trump maintains that “there are no limits” to his exercise of these powers. Congressional approval of a treaty with Iran should not be an afterthought of the President.
The President’s interpretation of the War Powers Act is certainly not what the Founders intended. In the Federalist papers Alexander Hamilton argued that treaties, as contracts with foreign countries, are the supreme law of the land, on a par with the Constitution. Article II of the Constitution mandates that treaties must be approved by the President and by two thirds vote in the Senate for enactment.
This is only the most recent example of overreach by Presidents in exercising the powers to wage war and negotiate treaties. For decades Presidents have launched wars and negotiated treaties with foreign countries without first seeking approval from Congress, as required by the Constitution. Presidents circumvent the law by referring to them as agreements rather than treaties. When legislators challenged these violations of the Constitution the Supreme Court ducks the issue, referring to the negotiation of these agreements as political issues. At this point it is fair to say that there are few legal constraints on the power of the President to wage war and negotiate treaties with foreign countries.
Surveys reveal that a large majority of citizens oppose the War in Iran. The War Powers Act resolutions passed in Congress reflect the will of the people, but these resolutions have little if any impact on our foreign policies. Congress ends up being a paper tiger. A decision to go to war and negotiate treaties with foreign powers should not be left to the discretion the President.
The Founders anticipated the dilemma we find ourselves in today. They understood that the checks and balances incorporated in the Constitution may fail to constrain the exercise of power by the Executive branch. The ultimate recourse for citizens is the power of petition granted to them in the First Amendment, establishing “the right of the people to petition the government for a redress of grievances”. Since 1877 the Supreme Court has consistently and broadly interpreted the First Amendment right of citizens to petition the government for a redress of grievances. That right may not be abridged by legislative acts, administrative rules, or executive inaction.
In this Semi quincentennial year we are reminded that the Declaration of Independence was drafted after King George and the British Parliament failed to respond to petitions by the American colonist for redress of grievances over taxation without representation, and other issues. The Founders used petitions to challenge what they perceived to be violations of their rights as British citizens. They went to war only after the British government failed to respond to their petitions. It is not surprising that they incorporated the right of petition in the First Amendment in the Bill of Rights.
The Constitution provides that citizens have equal rights with Congress to propose amendments to the Constitution. Citizens can petition to incorporate the War Powers Act as an amendment to the Constitution. A War Powers Act amendment could clarify that the decision to go to war, as well as the decision to negotiate treaties with foreign countries, requires approval by the President and by a supermajority vote in Congress, and that this is the supreme law of the land.
Barry W. Poulson is professor emeritus at the University of Colorado, Boulder Colorado, and on the Board of the Prosperity for US Foundation
William Owens is a former vice chairman of the Joint Chiefs of Staff. He is on the Board of the Prosperity for US Foundation
