The Biden administration has focused on bringing an end to the Israel-Hamas conflict while preventing a wider war with Iran and its proxies. This has meant deploying a carrier task force in the Mediterranean, responding to attacks on U.S. military personnel in Syria and Iraq and preventing the Houthis in Yemen from attacking U.S. and commercial shipping in the Red Sea.
Does all this mean that the U.S. is at war with these Iranian proxies? What does the War Powers Resolution and the U.S. Constitution say on this subject?
On Jan. 21 and Feb. 4, the president, as is required by the War Powers Resolution, sent reports to Congress stating that his administration had “conducted discrete strikes against Houthi underground sites” and “taken action to retaliate against militia groups affiliated with Iran’s Islamic Revolutionary Guard in Iraq and Syria.”
Did these reports trigger another section of the resolution stating that the military action must be terminated within 60 days unless Congress specifically authorizes a continuation of the action or declares war?
This question was posed by Sens. Tim Kaine (D-Va.), Chris Murphy (D-Conn.), Todd Young (R-Ind.) and Mike Lee (R-Utah) on Jan. 23. Thus far, they have received no reply.
A recent New York Times report indicates that this also is a matter of debate within the administration.
As is the case with most legislation, the War Powers Resolution is imperfect and subject to interpretation. Its primary purpose was to rein in the executive branch’s abuse of power, best exemplified by the Nixon administration’s refusal to end the Vietnam War even after the original Tonkin Gulf authority was repealed.
Over the years, executive branch lawyers have found creative means to rationalize the War Powers Resolution in ways that enhance presidential power. Most often administrations attempted to avoid triggering the 60-day cutoff clause by asserting that the action taken was permitted under the Constitution’s commander in chief clause.
More troubling, administration lawyers would urge the military to manipulate the rules of engagement to avoid notifying Congress.
One example was in 1981. President Ronald Reagan wanted to strike back at Libya after Muammar Gaddafi had ordered a terrorist attack on American servicemen in Berlin. Reagan wanted to send a U.S. naval fleet through Libya’s Gulf of Sidra to provoke Gaddafi. The president’s lawyers told him that he would have to notify Congress if the Navy used wartime rules of engagement, as that would indicate that the administration was aware that “hostilities” were imminent. The rules of engagement were changed.
The same considerations came into play in the case of the 1983 attack on the Marine barracks in Lebanon, where 241 Marines were killed by suicide bombers. The after-action report by Admiral Robert Long revealed that there was a failure to change the rules of engagement to wartime rules even after the U.S. became a combatant in the conflict. A change would have meant notifying Congress in advance, something the administration wanted to avoid.
Executive branch lawyers have become even more imaginative in recent years. Some have even contested the constitutionality of the resolution’s 60-day restriction. But that option isn’t available in an administration led by a president who voted for the resolution as a senator, and who is committed to making it work.
New York Times sources said that the internal debate today relates to whether the U.S. ships are in international waters and thus are not in an area where “hostilities” exist or are imminent. Another theory is that hostilities are intermittent, so the 60-day clock has never really been triggered.
It is hard to believe that these arguments would pass the smell test on Capitol Hill. A more plausible case could be made that when U.S. forces are attacked it is the commander in chief’s responsibility to protect them. That rationale, however, would not apply to commercial shipping.
Detering further aggression by Iran’s proxies while avoiding a direct war with Iran is the administration’s ultimate goal. So why not ask Congress for a time-limited authority to continue to diminish the capabilities of the Houthis and the other Iranian proxies?
Given the difficulty of even getting a vote on aid to Ukraine, the U.S. polity is increasingly seen as hopelessly divided. Republicans who proudly wear the MAGA title are a minority in the House Republican caucus, but their power derives from their ability to threaten a vote to replace the Speaker. In the Senate, the challenge is getting 60 votes to overcome a filibuster.
This is where the War Powers Resolution could break the deadlock. A motion to authorize a limited combat mission is a privileged “expedited procedure” during the 60-day period. It would no doubt pass on a bipartisan basis by a large margin.
Absent a vote on the Ukraine aid package, there may be no better way to demonstrate bipartisan unity and send a deterrence message to Iran and its friends. Bring a privileged motion to the House and Senate floors and authorize the president to continue taking the military action needed to deter Iran’s proxies from attacking U.S. forces and international shipping and reaffirm Congress’ war powers role.
J. Brian Atwood is a senior fellow at Brown University’s Watson Institute. He served as undersecretary of state and administrator of USAID in the Clinton administration. He was a foreign policy advisor to the principal author of the Senate War Powers Resolution, Sen. Thomas Eagleton (D-Mo.).