The House yesterday passed a concurrent resolution directing President Trump to remove U.S. armed forces from hostilities with Iran. The measure was introduced by Representative Gregory Meeks (NY) and passed by a 215-208 vote.
So what does the Constitution have to say about this?
The action was a concurrent resolution pursuant to Section 5(c) of the War Powers Resolution, at 50 U.S.C. Sec. 1544(c). This provision says that when U.S. forces are engaged outside the United States “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.”
But a concurrent resolution passes with only the affirmative votes of the House and the Senate. It need not get the signature (or veto override) of the President, like ordinary legislation.
As a result, there’s a broad understanding that Section 5(c) amounts to an unconstitutional legislative veto. This goes back to a 1983 Supreme Court case, INS v. Chadha, which held that legislative acts must pass both houses of Congress (bicameralism) and be signed by (or passed over the veto of) the President (presentment). (The Court in Chadha struck a law that allowed either house of Congress to override certain immigration decisions of the Attorney General. Because the override amounted to a legislative act, the Court said that it required bicameralism and presentment. And because it authorized one house of Congress to act alone, it violated those requirements.) Under Chadha, because Section 5(c) is a legislative act, and because it authorizes Congress to act without the President’s signature (or a veto override), it lacks presentment, and it is unconstitutional.
In the wake of Chahda, Congress added a provision to the War Powers Resolution, 50 U.S.C. Sec. 1546a, that fast-tracks a congressional joint resolution to require the President to remove forces (that is, to do the same thing that Section 5(c) authorizes). The joint resolution, in contrast to the concurrent resolution, requires both houses to pass (bicameralism) and a signature (or veto override) of the President (presentment). A joint resolution therefore satisfies Chadha.
But President Trump would surely veto a joint resolution. And Congress doesn’t have the votes to override. So a joint resolution compelling the President to remove forces stands no chance of becoming law.
As a result, neither a concurrent resolution nor a joint resolution compelling the President to remove forces would become law. (Even if they could, there’s probably no legal enforcement mechanism. The courts almost certainly wouldn’t get involved, because such challenges are almost surely a non-justiciable “political question.”)
But that doesn’t mean that yesterday’s action is meaningless.
The House’s move to use a concurrent resolution sends a strong political signal to the President. Senate passage would make that signal even stronger.
In addition to passing War Powers Resolutions (concurrent or joint), Congress has other ways to compel or pressure the President to remove forces. For one, it could withhold funding for the war, or for the military more generally, or for some other, unrelated presidential priority. (Like other legislation, however, this would require the President to sign the measure, or Congress to override a veto.) For another, it could refuse to confirm presidential nominees or refuse to pass legislation on presidential priorities, even in areas unrelated to the war. And for a third, it could engage in meaningful oversight. Among other things.
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