So what is the upshot of this? The question is unlikely to end up before a court, and no judge can truly prevent the president from using force without congressional authority. Given that, is Congress’s power moot? What, if anything, can Congress actually do to reassert its institutional role? If—hypothetically speaking—a majority in Congress wanted to keep the president from taking us to war, could it?
Deborah Pearlstein: Law in war isn’t as irrelevant as people fear
Congress has a number of tools it can—and should—wield to check the president in the war-powers arena. Unfortunately, many of these require regular attention and care, and rather than cultivating its war-powers tools, Congress has been ceding ground to the president in this space for years. Thus, only some of what follows are tools that Congress can use now to seek to rein in the current conflict, whereas others are tools Congress should cultivate to prevent the country from ending up in this dire situation again.
First, Congress should debate the policy implications of war with Iran whether or not the president requests authorization. The Constitution gives Congress, not the president, the power to declare war not because the Framers flipped a coin, but because such a weighty question affecting the nation should only be made following a full public debate, during which public support either develops or does not. This requires holding hearings, calling for evidence from executive-branch officials, and scrutinizing the evidence as well as the government’s plans for the end game. The time to do so is now, and the House is presently poised to consider legislation seeking to constrain the president’s use of unilateral force against Iran.
In addition to the power to declare war, the Constitution gives Congress authority over how and whether to fund it. Defunding the U.S. military in the midst of a full-blown war will not be popular, which is why Congress should enact spending restrictions now prohibiting the president from using force against Iran without authority from Congress. Restrictions on the use of the armed forces are often included when Congress passes its annual appropriations bills funding the military. Congress just missed an opportunity to do so when it stripped similar provisions, which had overwhelmingly passed in the House, from the National Defense Authorization Act it recently passed.
Additionally, while this subject is on the mind of the public and squarely before members of Congress, they should reform the War Powers Resolution too. The War Powers Resolution is a 1973 law passed by Congress that set conditions on the president when he acts unilaterally, including reporting requirements and time limits. The WPR does not itself authorize the use of force—a common misconception—and in fact explicitly states that it does not, but it does recognize that there may be certain cases in which presidents need to act unilaterally. By doing so, some interpret this as Congress implicitly ceding some ground to the president.