Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Welcome to Bloomberg Law. I'm Jun Brasso. Ahead in this hour,
Speaker 1: another show down between the White House and Capitol Hill.
Speaker 1: As the House votes to limit the president's authority to
Speaker 1: strike Iran, will Obamacare go back to the Supreme Court
Speaker 1: for a third time, and Delaware's highest court will assign
Speaker 1: a case that could affect the by laws or charters
Speaker 1: of more than a hundred public companies. President Trump's military
Speaker 1: action against Iran faced a rebuke by the Democratic controlled
Speaker 1: House today It voted to limit his authority to strike Iran,
Speaker 1: as tensions in the Middle East remain high after a U.
Speaker 1: S drone strike killed a top Iranian general. Here's House
Speaker 1: Arms Services Committee Democratic Chairman Elliott angele, It's not the
Speaker 1: job of Congress to give any administration. It's blind trust.
Speaker 1: It's why we have separation of powers. It's why the
Speaker 1: Constitution and trusts war power wars to Congress. Joining me
Speaker 1: is own A Hathaway, professor of international law Yale Law
Speaker 1: School and a former national security lawyer in the Defense
Speaker 1: Department's Office of General Council explain just what the War
Speaker 1: Powers Resolution is. The War Powers Resolution is a law
Speaker 1: that was passed in nineteen seventy three by Congress after
Speaker 1: it discovered that President Nixon had been running a secret
Speaker 1: bombing campaign in Cambodia, and the Congress decided that it
Speaker 1: was important for it to reassert its constitutional role in
Speaker 1: the decision to make war, and so it passed this law,
Speaker 1: which requires the President to consult with Congress before using force,
Speaker 1: to seek its authorization before engaging in any full scale war,
Speaker 1: and to inform Congress any time that the President puts
Speaker 1: US armed forces into hostilities and inform them within four
Speaker 1: eight hours. So would it apply to this to situation
Speaker 1: where there's no ground invasions and one military strike against
Speaker 1: one general. Well, some would say that, look, this is
Speaker 1: not such a big deal, Like this was one strike,
Speaker 1: it was relatively small scale. But this strike was not
Speaker 1: just one strike. It was a strike against the high
Speaker 1: level government official of a country the US has been
Speaker 1: engaged in long term tensions with where everyone expected that
Speaker 1: there would be retaliatory strikes in response on US basis personnel,
Speaker 1: maybe even civilians. And it was a strike that had
Speaker 1: the potential to ignite a full scale war with Iran.
Speaker 1: Luckily it seems for the moment that that hasn't happened,
Speaker 1: but it certainly did pose that danger. So for the
Speaker 1: President to take that kind of an action that really
Speaker 1: could have unraveled into a full scale war without even
Speaker 1: so much as informing Congress really was a pretty clear
Speaker 1: violation of the War Resolution. So in the past presidents
Speaker 1: of both parties have argued that it's an unconstitutional infringement
Speaker 1: of their authority, and today the White House issued a
Speaker 1: statement challenging the resolution, saying it's unnecessary and would lack
Speaker 1: the force of law. The statement of administration policies and
Speaker 1: the military actions it would apply to are already authorized
Speaker 1: under a two thousand to authorization for use of military
Speaker 1: force for Iraq. That is a pretty absurd claim. So
Speaker 1: the two thousand to authorization for use of military force
Speaker 1: was passed by the US government when Saddam Hussein was
Speaker 1: in power, and Congress gave President Bush the power to
Speaker 1: launch a war against Iraq to rid the country of
Speaker 1: the government of Saddam Hussein, who we believed had weapons
Speaker 1: of masstruction, or at least to the Administration claimed had
Speaker 1: weapons of mass destruction that posed a direct threat to
Speaker 1: American ends and two allies in the region. Now they're
Speaker 1: claiming eighteen years later that somehow that resolution that was
Speaker 1: passed for that very particular purpose can be used to
Speaker 1: justify an attack on an Iranian general who just happened
Speaker 1: to be visiting Iraq. That just is passing absurd. Even
Speaker 1: if both the House and Senate passed the resolution, were
Speaker 1: enough votes to override a presidential veto, wouldn't Trump claim
Speaker 1: a constitutional right to defy the resolution? And what happens
Speaker 1: then he made very well claim a right to defy
Speaker 1: the resolution. He has shown that he doesn't have a
Speaker 1: whole lot of regard for the resolution or indeed for
Speaker 1: the U. S. Constitution. And then Congress is really going
Speaker 1: to be in a difficult situation, so it doesn't have
Speaker 1: a whole lot of options. Congress could override a veto
Speaker 1: of a resolution that seeks to prevent the president from acting,
Speaker 1: and and if it succeeded in at then I do
Speaker 1: think that that would be effective, but the chances are
Speaker 1: highly unlikely that it would override. A veto requires a
Speaker 1: two thirds vote in both the House and the Senate.
Speaker 1: And remember, of course, the Senate is controlled by Republicans,
Speaker 1: and so that would be unlikely to actually succeed in
Speaker 1: going through. Is it also Congress's fault because with past
Speaker 1: presidents they seem to expand what they're allowed to do
Speaker 1: without Congress's approval. There's no doubt that Congress really is
Speaker 1: to blame for the situation it's finding itself in. Over
Speaker 1: the years, Congress is just set on the sidelines. It's
Speaker 1: been content to let presidents take action and do very
Speaker 1: little in response. It's happy to have the president take
Speaker 1: all of the responsibility and therefore allowed him to take
Speaker 1: all the initiatives. And now they're finding that when the
Speaker 1: president is taking an action they don't like lo and behold,
Speaker 1: they don't have any authority or any power really to
Speaker 1: push back. And that's a real problem. They've effectively allowed
Speaker 1: their constitutional powers to atrophy, and now they're trying to
Speaker 1: resuscitate it. They're trying to bring it back, They're trying
Speaker 1: to do what they need to do to actually play
Speaker 1: a role here. But there's no doubt there in this situation,
Speaker 1: in part because members of Congress have allowed over the
Speaker 1: years presidents to take the initiative and haven't done a
Speaker 1: whole lot in response. Today's House vote was scheduled shortly
Speaker 1: after a briefing by top administration officials on the strike
Speaker 1: that killed a top Iranian general, briefing that many Democrats
Speaker 1: and a few Republicans criticized for lacking specific justification for
Speaker 1: the strike. Here's Republican Senator Mike Lee of Utah. It
Speaker 1: is not acceptable for officials within the executive branch of government.
Speaker 1: I don't care whether they're with the CIA, with the
Speaker 1: Department of Defense, or or otherwise to come in and
Speaker 1: tell us that we can't debate and discuss the appropriateness
Speaker 1: of military intervention against Iran. It's un American, it's unconstitutional,
Speaker 1: and it's wrong. I've been talking to Professor own a
Speaker 1: half the way of Yale Law School. So some of
Speaker 1: the lawmakers who attended those briefings said it seemed as
Speaker 1: if the administration's attitude was a lack of concern about Congress.
Speaker 1: That seems to be the position of this administration that
Speaker 1: Congress really is irrelevant, and that's really troubling because that
Speaker 1: runs directly contrary to the constitutional order. Under the US Constitution,
Speaker 1: is Congress that has a power to declare war. It's
Speaker 1: Congress that has a power to raise and support armies. Yes,
Speaker 1: the president is a commander in chief, but he doesn't
Speaker 1: have the power to start a war all by himself.
Speaker 1: And this president doesn't seem to recognize that. He seems
Speaker 1: to only see the commander in chief part of the
Speaker 1: constitution and when a race the rest of it. But
Speaker 1: in fact he can't do that. The constitution does require
Speaker 1: him to get Congress on board before he takes us
Speaker 1: into any significant military situation, and he just seems unwilling
Speaker 1: to do what's constitutionally required. The administration has argued that
Speaker 1: there is an imminent threat, and many members of Congress
Speaker 1: have said that they haven't really heard anything that sounded
Speaker 1: like an imminent threat. And then today Vice President Pence
Speaker 1: said that it was not possible to share full details
Speaker 1: of the intelligence with lawmakers. So where does that leave lawmakers?
Speaker 1: Then it puts them in an impossible position because the
Speaker 1: administration is saying, Hey, if you only knew it, we knew,
Speaker 1: you'd believe us. That's not acceptable. There are processes for
Speaker 1: briefing members of Congress in classified briefings. In fact, all
Speaker 1: the briefings that they have held have been classified briefings.
Speaker 1: Members of Congress have walked out of those briefings and said,
Speaker 1: none of this information is convincing. There are ways in
Speaker 1: which they can provide the best information that they have
Speaker 1: two members of Congress without creating any risk of leaks,
Speaker 1: and they just haven't done it. And I think the
Speaker 1: only conclusion we can come to is they haven't done
Speaker 1: it because they just don't have it. How often have
Speaker 1: courts stepped in to disputes between President and Congress over
Speaker 1: war powers? The problem here is that courts really haven't
Speaker 1: stepped in much at all. They're very reluctant to get
Speaker 1: in the middle of a fight between the two political branches,
Speaker 1: and in general they avoid even reaching the merits. They
Speaker 1: used two different doctrines to get away from these cases.
Speaker 1: One is called standing, which basically it says, look, members
Speaker 1: of Congress, when you try to sue, you don't have
Speaker 1: any concrete and particularized harm that has come to you.
Speaker 1: You're just feeling frustrated that you're not able to get
Speaker 1: what you want to the legislative process. You need to
Speaker 1: go back to Congress and do it that way. And
Speaker 1: then the other one is a political question doctrine, where
Speaker 1: they say, look, this is really a political question, it's
Speaker 1: not a legal question, and therefore it's not something to
Speaker 1: be resolved in the courts, and often they use both
Speaker 1: of them at the same time. So the courts in
Speaker 1: general have really been reluctant to weigh in, and so
Speaker 1: the chances that they will do so here seem pretty slim.
Speaker 1: Looking at the strike against ceremony, some administration officials are
Speaker 1: comparing it to the strike by Barack Obama against Osama
Speaker 1: bin Lawden. Is there a comparison to be made there?
Speaker 1: You know, this is really very different. So remember that
Speaker 1: Sama bin Laden was the head of a terrorist group.
Speaker 1: He was not a member of a sovereign nation's government.
Speaker 1: Asama bin Laden was responsible for engineering, planning, and carrying
Speaker 1: out the nine eleven attacks that killed thousands of Americans,
Speaker 1: and it was very clear that he was responsible for
Speaker 1: those attacks. So here, Solomani has been the head of
Speaker 1: a government force in Iran, but the administration so far
Speaker 1: has not been able to point to any particular attack
Speaker 1: that he is planning or that he has underway. Osama
Speaker 1: Bin Lawden, on the other hand, was continuing to plan
Speaker 1: attacks on Americans. There was no doubt that he had
Speaker 1: the intention of doing another nine eleven. If he had
Speaker 1: an opera tunity. So these are just very different kinds
Speaker 1: of incidents, and as a result, this one really does
Speaker 1: not have the kind of legal grounding that the President
Speaker 1: Obama's attack on bin Landon did so, how Speaker Nancy
Speaker 1: Pelosi said today, the House resolution to limit President Trump's
Speaker 1: ability to take military action against Iran is more than
Speaker 1: justice symbolic gesture. But many people are saying that it
Speaker 1: is just that a symbolic gesture. Well, the difficulty here
Speaker 1: is if the president is really determined to act, regardless
Speaker 1: of what Congress says, this concurrent resolution probably won't stop him.
Speaker 1: What it does do is it robs him of any
Speaker 1: ability to say, well, Congress is acquiescing in what I'm doing.
Speaker 1: They're just kind of sitting on the sidelines. They don't
Speaker 1: really care, you know, if they act and they passed this,
Speaker 1: he really can't say that. It also is an opportunity
Speaker 1: for Congress to say, we don't think that any of
Speaker 1: the claims that you might be making about the two
Speaker 1: thousand one Authorization for Use of Military Force of the
Speaker 1: two thousand to Authorization for you Similitary Force which we passed,
Speaker 1: have any basis that we're the ones who enacted those laws,
Speaker 1: and in our view, any attacks on Iran don't fall
Speaker 1: under them, and that really weakens the president's legal case.
Speaker 1: But the truth is, if he's prepared to go ahead,
Speaker 1: regardless of how weak his legal position is, the concurrent
Speaker 1: resolution is unlikely to stop him. Will you explain how
Speaker 1: or why Congress has allowed its war powers to erode?
Speaker 1: And that's both Democrats and Republicans. I think part of
Speaker 1: the reason that members of Congress have let these powers
Speaker 1: erode is that it's not all that politically popular to
Speaker 1: get involved in these questions. When President Obama went to
Speaker 1: Congress and said, please give me authority to take the
Speaker 1: fight to Isis, Congress just didn't really want to take
Speaker 1: responsibility for that. They didn't want to have to enact
Speaker 1: a new authorization for use to military force. They found
Speaker 1: it really convenient to just say, keep doing the fight
Speaker 1: under the two thousand one Authorization for Use of Military Force,
Speaker 1: which we enacted right after nine eleven and which clearly
Speaker 1: most people think really doesn't apply to ISIS, a group
Speaker 1: that never existed in two thousand one in Syria, which
Speaker 1: is way far away from where al Qaeda and the
Speaker 1: Taliban that carried out the attacks on nine eleven were located.
Speaker 1: So Congress really has sort of refused to take action.
Speaker 1: It's sort of allowed the presidents to use this law
Speaker 1: that was passed in two thousand one for all of
Speaker 1: our counter terrorism operations, and really it's refused to kind
Speaker 1: of play its role in the constitutional order. And and
Speaker 1: now it's kind of surprised that it stuck having not
Speaker 1: played a role and seeing a president really seizing the initiative.
Speaker 1: That doesn't excuse what the president is doing. He's acting unconstitutionally,
Speaker 1: but I do think it shows that our constitutional war
Speaker 1: powers really have gotten out of whack. Thanks for being
Speaker 1: on Bloomberg Law. That's profess or own A Hathaway at
Speaker 1: Yale Law School. This is Bloomberg m