By Robert Willmann
On 4 April 2019, Congress passed a resolution under the War Powers Act, officially known as the War Powers Resolution, Public Law 93-148, to stop most operations by U.S. Armed Forces in Yemen. This was noted here on SST [1]. On 16 April, president Trump vetoed the resolution, which was Senate Joint Resolution 7 (S.J.Res. 7)–
The section of the War Powers Resolution/Act applied in this instance is section 1544(c), "Concurrent resolution for removal by president of United States Armed Forces" [2]–
"(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution."
The War Powers law was passed during the time of the Vietnam War to try to give Congress more specific control over actions amounting to war because the Vietnam conflict was not conducted pursuant to a declaration of war by Congress under Article 1, section 8 of the constitution. President Richard Nixon vetoed the bill, arguing that Congress could use its power to appropriate money and stop funding the war. However, Congress overrode his veto by at least a two-thirds vote in the House and Senate, and the War Powers Resolution became law on 7 November 1973.
Article 1, section 8 of the constitution grants Congress the power, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." The War Powers law can be valid under this necessary and proper clause because it helps carry into execution the power of Congress to declare war.
Section 1544(c) of Title 50 of the U.S. Code presents an interesting issue. As part of a valid law enacted in 1973, it clearly says that "… such forces shall be removed by the President if the Congress so directs by concurrent resolution". Congress has passed a resolution. Article 2, section 3 of the constitution says that the president "shall take care that the laws be faithfully executed". Is the president obligated to "faithfully execute" section 1544(c) and a resolution pursuant to it?
Congress has been assuming that Senate Joint Resolution 7 is like any other proposed bill and is to be presented to the president under Article 1, section 7 of the constitution [3]–
"Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the president of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law."
However, is Senate Joint Resolution 7 a "bill" within the meaning of Article 1, section 7 of the constitution? Or is it part of applying and executing section 1544(c) of the War Powers Resolution? As a separate reason and basis, is it a way to hold the executive branch accountable and cancel an action by an administrative agency or the president, usually called a "legislative veto" over an action of the executive branch?
The issue appears to be open, although somewhat tricky. The U.S. Supreme Court in INS v. Chadha, 462 U.S. 919 (1983), ruled that a provision in the Immigration and Nationality Act that allowed a house of Congress to in effect cancel an action by the immigration service through the attorney general was unconstitutional [4]. The House of Representatives had a resolution opposing "the granting of permanent residence in the United States to [six] aliens," including Chadha. The opinion addressed the concept of a legislative veto over activity by an agency of the executive branch. The majority opinion took the position that the requirement of Article 1, section 7 to present a bill to the president for approval or objections should apply to that particular situation as part of the separation of powers structure of the constitution.
In a dissenting opinion in the Chadha case, Judge Byron White said–
"The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes."
This present resolution, the situation involving U.S. Forces in Yemen, and the text of the War Powers law are different enough from the issue in the Chadha case to justify a good faith effort to initiate court action and present: 1) the issue of section 1544(c) as a legislative veto, and, separately, 2) the issue that a resolution under section 1544(c) requires the president to faithfully execute the determination by Congress in Senate Joint Resolution 7, and, therefore, the resolution is not a "bill" within the meaning of Article 1, section 7 of the constitution and does not have to be presented to the president for approval.
Furthermore, section 1544(b) of Title 50 requires automatic withdrawal of armed forces after a specific time period–
"Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States…."
Section 1, part 3 of S.J.Res. 7 does assert that U.S. armed forces were earlier introduced into hostilities in Yemen–
"(3) Since March 2015, members of the United States Armed Forces have been introduced into hostilities between the Saudi-led coalition and the Houthis, including providing to the Saudi-led coalition aerial targeting assistance, intelligence sharing, and mid-flight aerial refueling."
Although pinpointing March 2015 as the time soldiers were introduced into hostilities can be seen as a date that can trigger the application of section 1544(b) and its automatic requirement that the president terminate any use of U.S. Armed Forces, it might have helped if Congress had included in S.J.Res. 7 an additional section quoting 1544(b) and that the president is also required by that section automatically to terminate the use of the armed forces, since the 60 calendar days under 1544(b) have long since expired after personnel were introduced into hostilities in Yemen. Furthermore, S.J.Res. 7 could have included a statement that it is a directive pursuant to a valid law and does not have have to be presented to the president for a signature.
Including both sections 1544(b) and (c) in the resolution and the assertion that it does not require a presidential signature would have set up the issues for an attempt at a lawsuit and court action.
At this time, I have not found an instance in which section 1544(b) has been the subject of court action, and so its application is a wide open issue.
Certainly if a court case is started, the Trump administration will argue that the language in Article 1, section 7 of the constitution requires that this resolution be presented to the president for his signature or objections as a veto, which was a rationale in the Supreme Court's Chadha decision in 1983. In addition, the administration may allege that since Congress did not include in S.J.Res. 7 a statement that the president was obligated to faithfully execute it pursuant to an existing federal law without it being presented to him for a signature or veto, Congress has "waived" that issue or legal point, and thus cannot get a court decision on it.
However, the constitution does not say that a president has the power to initiate and direct military action unless and until Congress decides to cut the money off. It is the other way around. The president does not initiate and direct military action unless Congress so declares.
Nevertheless, attempting to maintain a court case on this matter will keep it alive and in front of the public, even though the press and mass media have largely ignored it. But at the same time, before getting involved in a lawsuit, it is obviously important to think through and visualize possible events in the litigation and different outcomes, because with an issue like this one, you do not want to have a court of appeals or the Supreme Court create a precedent against the very point you are trying to establish.
Congress will probably try to override the president's veto, but when originally passed, the resolution did not have a veto-proof margin of votes, with the House result being 247-175 and the Senate 54-46. Additional votes will have to be put together to override the veto in order to largely stop the involvement in Yemen. Otherwise, the risks and viability of a lawsuit in court will be on the table.
[2] http://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter33&edition=prelim
[3] http://avalon.law.yale.edu/18th_century/art1.asp
https://www.law.cornell.edu/constitution/articlei
[4] Supreme Court opinion, INS v. Chadha, 462 U.S. 919 (1983)
https://www.law.cornell.edu/supremecourt/text/462/919
