Analysis: Congress may find middle ground for War Powers Resolution

As Congress moves toward a potential war powers vote this week, most congressional Republicans are standing behind President Trump’s decision over the weekend to attack Iran, while most Democrats remain opposed to authorizing more conflict. Many Democrats argue that the president should have sought congressional approval first. For more, let’s turn to Laurie R. Blank. She is a clinical professor of law and director of the International Humanitarian Law Clinic at Emory University School of Law. She spoke with GPB’s Peter Biello.

Peter Biello: So on the question of whether the president should have sought congressional approval first: That's not required in all instances, correct? 

Laurie Blank: It's not required in all instances, but in a case of this magnitude, I think it would be wise. I think it's a good argument that it's constitutionally required, certainly would be constitutionally beneficial. So our constitution sets up a system of shared power in the war-making arena between the president and Congress. Congress has the power to declare war. That is set out in the Constitution quite clearly. And it also is understood sort of through long history that the president has the authority to defend the United States against attack. So we don't have to wait for Congress in that situation if the U.S. Is invaded, if the U.S. is attacked. That's not the case here. Here, I think the president absolutely should have gone to Congress and is operating outside the bounds of what is constitutionally appropriate here. 

Peter Biello: Some Republicans have argued that Iran has been an antagonist to the U.S. for decades. It's called for death to America. It's supported terrorists who have harmed Americans. What do you make of the argument that Republicans are making that Iran essentially was already at war with us before we were at war with them? 

Laurie Blank: If we're talking about the president's authority, and if that authority rests on repelling an attack on the United States, then there has to be an attack, not something however awful that happened 10 years ago or 30 years ago or even one year ago. 

Peter Biello: Presidents from both major parties have committed boots on the ground in foreign countries without congressional approval. President Obama did it in Syria, so did President Trump. And they're not the only presidents to have done this. Why do you think there are no real consequences for presidents who decide, without Congress, to start wars? 

Laurie Blank: It's extremely difficult for a Congress, regardless of political party, to oppose and take real steps to oppose American military operations once they have already been launched. Once the conflict is underway, the focus is going to be on the American military personnel who are in harm's way. And absolutely that's a critical focus for everybody. And for Congress to, y'know, refuse to fund equipment or other material that's needed for those troops is extremely difficult once they're already in harm's way. 

Peter Biello: So Congress may vote on a War Powers Resolution this week. What would that authorize? 

Laurie Blank: Well, that probably depends on what they vote for, but I see a couple of options. One is Congress votes to authorize these military operations in Iran with no parameters, with no limits or anything like that. They ratify the president's activity. That's one option. The exact opposite is Congress votes to prohibit any further use of force in or against Iran. That would essentially set up a real constitutional loggerheads because the president would be taking action that Congress had said "No." I think what we may see more likely is something in the middle. What we might see is appropriations, which is essentially implying your support. Or we might some type of support that's couched a little bit, right? That tries to keep this from escalating any further. And so it sets some goals for the operation or it sets a time frame or even geographical parameters. Congress has all of those tools available. I think we need to watch and see what it is they're going to try to do and what they're able to pass.