President Trump will face a choice later this week, when Congress sends him its first-ever use of the War Powers Resolution of 1973 to withdraw from a military conflict, reasserting authority after decades of lawmakers’ washing their hands of controversial conflicts.
The legislation seeks to remove the U.S. from the Saudi-led coalition that for four years has fought to restore ousted Yemeni President Abdrabbuh Hadi, who was deposed by Iran-friendly Shiite rebels in 2015, three years after he won a single-candidate election.
White House advisers are urging Trump to issue his first veto. Advocates remain hopeful of swaying Trump, pointing to his anti-interventionist streak in other regional civil wars. But they say the legislation is significant regardless of the president’s ultimate decision.
“It’s not just consequential in Yemen, it’s consequential in terms of a fundamental realignment of Congress’s power on war and peace. It’s being reclaimed on a bipartisan basis,” said sponsor Rep. Ro Khanna. “It’s going to reorient American foreign policy. This president and future presidents will know there’s a coalition in Congress willing to vote against interventionism.”
Khanna, a California Democrat, said he believes Trump may still sign the legislation, which was amended to allow intelligence sharing in response to administration concerns before passing the House in a 248-177 vote. Trump has taken an anti-interventionist approach to other regional conflicts, including in Syria and Afghanistan, he noted.
“That’s the argument I’m going to make to the president: You want to get us out of Afghanistan, and I’m supportive of you; you want to get us out of Syria, and I support you; … but you can’t say you want a foreign policy of restraint and then have us involved in Yemen,” Khanna said.
The fighting in Yemen hasn’t dislodged the rebels, but has brought 14 million people to the brink of starvation, according to the United Nations.
But cutting against Trump’s anti-interventionism is his desire to keep Saudi Arabia a close ally, even after the kingdom’s de facto ruler, Crown Prince Mohammed bin Salman, was implicated by the CIA in the murder of journalist Jamal Khashoggi, whose death helped build support for the measure, including among more hawkish lawmakers. Sen. Lindsey Graham, R-S.C., voted for a similar bill in December, saying, “I’m pissed.”
On Yemen, the White House has expressed some criticism of the Saudi coalition. Press secretary Sarah Sanders last year called for a ceasefire after the Saudi-led coalition encroached on a key port, jeopardizing the transport of food to rebel-held areas. In November, the Trump administration ended aerial refueling of Saudi coalition aircraft, a key U.S. contribution to the war.
It’s unclear what exactly the legislation would change, considering the exemptions included in the House bill. Much of the known U.S. support for the campaign has been intelligence sharing and aircraft refueling, in addition to other logistical help. Helping the Saudis pick bombing targets may be allowed under the intelligence-sharing carve-out. Another carve-out for anti-al-Qaeda activities could blur the lines for deployments.
Khanna argues the bill “gets us 80 percent there,” despite allowing intelligence sharing, and said the bill also may force the Saudis to exercise self-restraint.
Passage in the Senate is not in doubt. The bill will see an up-or-down vote, and a similar measure passed 56-41 in December.
A White House statement opposing the bill — before it was watered down with the intelligence-sharing amendment — said lawmakers operated on an “erroneous premise” that forces were engaged in “hostilities,” where in fact they only support others doing the fighting.
Trump hasn’t said much himself about Yemen. Last month, he ignored a question about the war shouted during a White House event. Some of his key allies have voted to end the conflict, including Reps. Mark Meadows, R-N.C., and Jim Jordan, R-Ohio, and Sens. Mike Lee, R-Utah, and Rand Paul, R-Ky.
Long road to war-ending vote
Congress passed the War Powers Resolution in 1973, after it was revealed that President Richard Nixon secretly expanded the Vietnam War into Cambodia. The law requires presidents to notify Congress within 48 hours when they commit the military to hostilities and to get congressional authorization after 60 days.
In practice, nobody has been able to enforce the law, with judges tossing out recent lawsuits filed by members of Congress and by a soldier who argued current wars were unauthorized.
In 2011, a group of 10 lawmakers sued President Barack Obama, arguing he had no congressional authorization to intervene in Libya’s civil war. The case was dismissed, with a judge finding, in part, lawmakers had a legislative remedy to end the war.
Last year, a panel of appeals judges dismissed a lawsuit from former Army intelligence analyst Nathan Michael Smith, who argued he was forced to violate his oath to uphold the Constitution by engaging in an unauthorized military conflict against the Islamic State group.
“This is profoundly significant,” said Yale Law School professor Bruce Ackerman, who represented Smith. “It’s a core principle of the American revolution: When countries go to war, it has to be approved by the legislature.”
Smith, who is currently living in Germany and preparing to attend graduate school, said he wasn’t alone in feeling “a nagging uneasiness” about participating in a military conflict that lacked specific authorization.
“This type of resolution needs to become the norm,” he said.
Reflecting on his legal battle, Smith said, “I was completely certain I was right and doing the right thing per the oath that I had taken to the Constitution.” Although he faced no negative repercussions, “I felt any punishment that might come to me would be extremely hypocritical as long as people in Congress were continuing to hide under their desks.”
Litigation could follow
If Trump vetoes the resolution, there could be a battle over whether his signature is even needed.
The last time Congress voted to end a military conflict was in 1973, when lawmakers voted to end Nixon’s secret expansion of the Vietnam War. Nixon vetoed the bill, but months later Congress passed the War Powers Resolution, which laid out a specific statutory authority for ending a conflict.
The law says: “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.”
Khanna and legal experts say that could mean litigation if Trump vetoes the bill.
“As I understand it, it’s never been settled. It’s never been tested,” Khanna said, adding that he’s not sure lawmakers would sue. “I’d have to talk to colleagues.”
Legal analysis may focus on whether a “legislative veto” is allowed. A 1983 Supreme Court ruling determined that Congress lacked that power, but in a different subject area.
“As the act was initially passed, there was no contemplation that the president could veto such a thing,” said Ackerman, arguing the court precedent doesn’t apply.
Louis Fisher, senior specialist in separation of powers at the Library of Congress from 1970 to 2006, said that because the Khanna bill is packaged as a joint resolution rather than a concurrent resolution, he believes it must be presented to the president for his signature.
“The resolutions don’t actually end U.S. involvement in the conflict,” said Mandy Smithberger, a defense policy expert at the Project On Government Oversight. “That said, I think they have demonstrated the lack of political support for continued U.S. involvement.”
