WEBVTT - Was the Military Strike Against Iran Constitutional?

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<v Speaker 1>This is Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Welcome to Bloomberg Law. I'm Jun Brasso. Ahead in this hour,

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<v Speaker 1>another show down between the White House and Capitol Hill.

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<v Speaker 1>As the House votes to limit the president's authority to

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<v Speaker 1>strike Iran, will Obamacare go back to the Supreme Court

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<v Speaker 1>for a third time, and Delaware's highest court will assign

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<v Speaker 1>a case that could affect the by laws or charters

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<v Speaker 1>of more than a hundred public companies. President Trump's military

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<v Speaker 1>action against Iran faced a rebuke by the Democratic controlled

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<v Speaker 1>House today It voted to limit his authority to strike Iran,

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<v Speaker 1>as tensions in the Middle East remain high after a U.

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<v Speaker 1>S drone strike killed a top Iranian general. Here's House

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<v Speaker 1>Arms Services Committee Democratic Chairman Elliott angele, It's not the

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<v Speaker 1>job of Congress to give any administration. It's blind trust.

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<v Speaker 1>It's why we have separation of powers. It's why the

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<v Speaker 1>Constitution and trusts war power wars to Congress. Joining me

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<v Speaker 1>is own A Hathaway, professor of international law Yale Law

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<v Speaker 1>School and a former national security lawyer in the Defense

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<v Speaker 1>Department's Office of General Council explain just what the War

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<v Speaker 1>Powers Resolution is. The War Powers Resolution is a law

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<v Speaker 1>that was passed in nineteen seventy three by Congress after

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<v Speaker 1>it discovered that President Nixon had been running a secret

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<v Speaker 1>bombing campaign in Cambodia, and the Congress decided that it

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<v Speaker 1>was important for it to reassert its constitutional role in

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<v Speaker 1>the decision to make war, and so it passed this law,

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<v Speaker 1>which requires the President to consult with Congress before using force,

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<v Speaker 1>to seek its authorization before engaging in any full scale war,

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<v Speaker 1>and to inform Congress any time that the President puts

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<v Speaker 1>US armed forces into hostilities and inform them within four

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<v Speaker 1>eight hours. So would it apply to this to situation

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<v Speaker 1>where there's no ground invasions and one military strike against

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<v Speaker 1>one general. Well, some would say that, look, this is

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<v Speaker 1>not such a big deal, Like this was one strike,

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<v Speaker 1>it was relatively small scale. But this strike was not

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<v Speaker 1>just one strike. It was a strike against the high

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<v Speaker 1>level government official of a country the US has been

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<v Speaker 1>engaged in long term tensions with where everyone expected that

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<v Speaker 1>there would be retaliatory strikes in response on US basis personnel,

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<v Speaker 1>maybe even civilians. And it was a strike that had

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<v Speaker 1>the potential to ignite a full scale war with Iran.

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<v Speaker 1>Luckily it seems for the moment that that hasn't happened,

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<v Speaker 1>but it certainly did pose that danger. So for the

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<v Speaker 1>President to take that kind of an action that really

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<v Speaker 1>could have unraveled into a full scale war without even

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<v Speaker 1>so much as informing Congress really was a pretty clear

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<v Speaker 1>violation of the War Resolution. So in the past presidents

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<v Speaker 1>of both parties have argued that it's an unconstitutional infringement

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<v Speaker 1>of their authority, and today the White House issued a

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<v Speaker 1>statement challenging the resolution, saying it's unnecessary and would lack

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<v Speaker 1>the force of law. The statement of administration policies and

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<v Speaker 1>the military actions it would apply to are already authorized

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<v Speaker 1>under a two thousand to authorization for use of military

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<v Speaker 1>force for Iraq. That is a pretty absurd claim. So

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<v Speaker 1>the two thousand to authorization for use of military force

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<v Speaker 1>was passed by the US government when Saddam Hussein was

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<v Speaker 1>in power, and Congress gave President Bush the power to

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<v Speaker 1>launch a war against Iraq to rid the country of

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<v Speaker 1>the government of Saddam Hussein, who we believed had weapons

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<v Speaker 1>of masstruction, or at least to the Administration claimed had

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<v Speaker 1>weapons of mass destruction that posed a direct threat to

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<v Speaker 1>American ends and two allies in the region. Now they're

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<v Speaker 1>claiming eighteen years later that somehow that resolution that was

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<v Speaker 1>passed for that very particular purpose can be used to

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<v Speaker 1>justify an attack on an Iranian general who just happened

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<v Speaker 1>to be visiting Iraq. That just is passing absurd. Even

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<v Speaker 1>if both the House and Senate passed the resolution, were

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<v Speaker 1>enough votes to override a presidential veto, wouldn't Trump claim

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<v Speaker 1>a constitutional right to defy the resolution? And what happens

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<v Speaker 1>then he made very well claim a right to defy

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<v Speaker 1>the resolution. He has shown that he doesn't have a

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<v Speaker 1>whole lot of regard for the resolution or indeed for

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<v Speaker 1>the U. S. Constitution. And then Congress is really going

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<v Speaker 1>to be in a difficult situation, so it doesn't have

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<v Speaker 1>a whole lot of options. Congress could override a veto

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<v Speaker 1>of a resolution that seeks to prevent the president from acting,

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<v Speaker 1>and and if it succeeded in at then I do

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<v Speaker 1>think that that would be effective, but the chances are

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<v Speaker 1>highly unlikely that it would override. A veto requires a

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<v Speaker 1>two thirds vote in both the House and the Senate.

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<v Speaker 1>And remember, of course, the Senate is controlled by Republicans,

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<v Speaker 1>and so that would be unlikely to actually succeed in

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<v Speaker 1>going through. Is it also Congress's fault because with past

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<v Speaker 1>presidents they seem to expand what they're allowed to do

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<v Speaker 1>without Congress's approval. There's no doubt that Congress really is

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<v Speaker 1>to blame for the situation it's finding itself in. Over

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<v Speaker 1>the years, Congress is just set on the sidelines. It's

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<v Speaker 1>been content to let presidents take action and do very

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<v Speaker 1>little in response. It's happy to have the president take

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<v Speaker 1>all of the responsibility and therefore allowed him to take

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<v Speaker 1>all the initiatives. And now they're finding that when the

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<v Speaker 1>president is taking an action they don't like lo and behold,

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<v Speaker 1>they don't have any authority or any power really to

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<v Speaker 1>push back. And that's a real problem. They've effectively allowed

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<v Speaker 1>their constitutional powers to atrophy, and now they're trying to

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<v Speaker 1>resuscitate it. They're trying to bring it back, They're trying

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<v Speaker 1>to do what they need to do to actually play

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<v Speaker 1>a role here. But there's no doubt there in this situation,

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<v Speaker 1>in part because members of Congress have allowed over the

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<v Speaker 1>years presidents to take the initiative and haven't done a

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<v Speaker 1>whole lot in response. Today's House vote was scheduled shortly

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<v Speaker 1>after a briefing by top administration officials on the strike

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<v Speaker 1>that killed a top Iranian general, briefing that many Democrats

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<v Speaker 1>and a few Republicans criticized for lacking specific justification for

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<v Speaker 1>the strike. Here's Republican Senator Mike Lee of Utah. It

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<v Speaker 1>is not acceptable for officials within the executive branch of government.

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<v Speaker 1>I don't care whether they're with the CIA, with the

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<v Speaker 1>Department of Defense, or or otherwise to come in and

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<v Speaker 1>tell us that we can't debate and discuss the appropriateness

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<v Speaker 1>of military intervention against Iran. It's un American, it's unconstitutional,

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<v Speaker 1>and it's wrong. I've been talking to Professor own a

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<v Speaker 1>half the way of Yale Law School. So some of

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<v Speaker 1>the lawmakers who attended those briefings said it seemed as

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<v Speaker 1>if the administration's attitude was a lack of concern about Congress.

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<v Speaker 1>That seems to be the position of this administration that

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<v Speaker 1>Congress really is irrelevant, and that's really troubling because that

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<v Speaker 1>runs directly contrary to the constitutional order. Under the US Constitution,

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<v Speaker 1>is Congress that has a power to declare war. It's

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<v Speaker 1>Congress that has a power to raise and support armies. Yes,

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<v Speaker 1>the president is a commander in chief, but he doesn't

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<v Speaker 1>have the power to start a war all by himself.

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<v Speaker 1>And this president doesn't seem to recognize that. He seems

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<v Speaker 1>to only see the commander in chief part of the

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<v Speaker 1>constitution and when a race the rest of it. But

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<v Speaker 1>in fact he can't do that. The constitution does require

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<v Speaker 1>him to get Congress on board before he takes us

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<v Speaker 1>into any significant military situation, and he just seems unwilling

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<v Speaker 1>to do what's constitutionally required. The administration has argued that

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<v Speaker 1>there is an imminent threat, and many members of Congress

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<v Speaker 1>have said that they haven't really heard anything that sounded

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<v Speaker 1>like an imminent threat. And then today Vice President Pence

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<v Speaker 1>said that it was not possible to share full details

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<v Speaker 1>of the intelligence with lawmakers. So where does that leave lawmakers?

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<v Speaker 1>Then it puts them in an impossible position because the

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<v Speaker 1>administration is saying, Hey, if you only knew it, we knew,

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<v Speaker 1>you'd believe us. That's not acceptable. There are processes for

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<v Speaker 1>briefing members of Congress in classified briefings. In fact, all

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<v Speaker 1>the briefings that they have held have been classified briefings.

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<v Speaker 1>Members of Congress have walked out of those briefings and said,

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<v Speaker 1>none of this information is convincing. There are ways in

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<v Speaker 1>which they can provide the best information that they have

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<v Speaker 1>two members of Congress without creating any risk of leaks,

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<v Speaker 1>and they just haven't done it. And I think the

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<v Speaker 1>only conclusion we can come to is they haven't done

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<v Speaker 1>it because they just don't have it. How often have

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<v Speaker 1>courts stepped in to disputes between President and Congress over

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<v Speaker 1>war powers? The problem here is that courts really haven't

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<v Speaker 1>stepped in much at all. They're very reluctant to get

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<v Speaker 1>in the middle of a fight between the two political branches,

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<v Speaker 1>and in general they avoid even reaching the merits. They

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<v Speaker 1>used two different doctrines to get away from these cases.

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<v Speaker 1>One is called standing, which basically it says, look, members

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<v Speaker 1>of Congress, when you try to sue, you don't have

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<v Speaker 1>any concrete and particularized harm that has come to you.

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<v Speaker 1>You're just feeling frustrated that you're not able to get

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<v Speaker 1>what you want to the legislative process. You need to

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<v Speaker 1>go back to Congress and do it that way. And

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<v Speaker 1>then the other one is a political question doctrine, where

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<v Speaker 1>they say, look, this is really a political question, it's

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<v Speaker 1>not a legal question, and therefore it's not something to

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<v Speaker 1>be resolved in the courts, and often they use both

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<v Speaker 1>of them at the same time. So the courts in

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<v Speaker 1>general have really been reluctant to weigh in, and so

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<v Speaker 1>the chances that they will do so here seem pretty slim.

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<v Speaker 1>Looking at the strike against ceremony, some administration officials are

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<v Speaker 1>comparing it to the strike by Barack Obama against Osama

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<v Speaker 1>bin Lawden. Is there a comparison to be made there?

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<v Speaker 1>You know, this is really very different. So remember that

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<v Speaker 1>Sama bin Laden was the head of a terrorist group.

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<v Speaker 1>He was not a member of a sovereign nation's government.

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<v Speaker 1>Asama bin Laden was responsible for engineering, planning, and carrying

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<v Speaker 1>out the nine eleven attacks that killed thousands of Americans,

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<v Speaker 1>and it was very clear that he was responsible for

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<v Speaker 1>those attacks. So here, Solomani has been the head of

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<v Speaker 1>a government force in Iran, but the administration so far

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<v Speaker 1>has not been able to point to any particular attack

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<v Speaker 1>that he is planning or that he has underway. Osama

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<v Speaker 1>Bin Lawden, on the other hand, was continuing to plan

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<v Speaker 1>attacks on Americans. There was no doubt that he had

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<v Speaker 1>the intention of doing another nine eleven. If he had

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<v Speaker 1>an opera tunity. So these are just very different kinds

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<v Speaker 1>of incidents, and as a result, this one really does

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<v Speaker 1>not have the kind of legal grounding that the President

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<v Speaker 1>Obama's attack on bin Landon did so, how Speaker Nancy

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<v Speaker 1>Pelosi said today, the House resolution to limit President Trump's

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<v Speaker 1>ability to take military action against Iran is more than

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<v Speaker 1>justice symbolic gesture. But many people are saying that it

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<v Speaker 1>is just that a symbolic gesture. Well, the difficulty here

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<v Speaker 1>is if the president is really determined to act, regardless

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<v Speaker 1>of what Congress says, this concurrent resolution probably won't stop him.

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<v Speaker 1>What it does do is it robs him of any

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<v Speaker 1>ability to say, well, Congress is acquiescing in what I'm doing.

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<v Speaker 1>They're just kind of sitting on the sidelines. They don't

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<v Speaker 1>really care, you know, if they act and they passed this,

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<v Speaker 1>he really can't say that. It also is an opportunity

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<v Speaker 1>for Congress to say, we don't think that any of

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<v Speaker 1>the claims that you might be making about the two

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<v Speaker 1>thousand one Authorization for Use of Military Force of the

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<v Speaker 1>two thousand to Authorization for you Similitary Force which we passed,

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<v Speaker 1>have any basis that we're the ones who enacted those laws,

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<v Speaker 1>and in our view, any attacks on Iran don't fall

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<v Speaker 1>under them, and that really weakens the president's legal case.

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<v Speaker 1>But the truth is, if he's prepared to go ahead,

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<v Speaker 1>regardless of how weak his legal position is, the concurrent

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<v Speaker 1>resolution is unlikely to stop him. Will you explain how

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<v Speaker 1>or why Congress has allowed its war powers to erode?

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<v Speaker 1>And that's both Democrats and Republicans. I think part of

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<v Speaker 1>the reason that members of Congress have let these powers

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<v Speaker 1>erode is that it's not all that politically popular to

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<v Speaker 1>get involved in these questions. When President Obama went to

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<v Speaker 1>Congress and said, please give me authority to take the

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<v Speaker 1>fight to Isis, Congress just didn't really want to take

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<v Speaker 1>responsibility for that. They didn't want to have to enact

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<v Speaker 1>a new authorization for use to military force. They found

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<v Speaker 1>it really convenient to just say, keep doing the fight

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<v Speaker 1>under the two thousand one Authorization for Use of Military Force,

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<v Speaker 1>which we enacted right after nine eleven and which clearly

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<v Speaker 1>most people think really doesn't apply to ISIS, a group

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<v Speaker 1>that never existed in two thousand one in Syria, which

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<v Speaker 1>is way far away from where al Qaeda and the

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<v Speaker 1>Taliban that carried out the attacks on nine eleven were located.

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<v Speaker 1>So Congress really has sort of refused to take action.

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<v Speaker 1>It's sort of allowed the presidents to use this law

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<v Speaker 1>that was passed in two thousand one for all of

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<v Speaker 1>our counter terrorism operations, and really it's refused to kind

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<v Speaker 1>of play its role in the constitutional order. And and

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<v Speaker 1>now it's kind of surprised that it stuck having not

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<v Speaker 1>played a role and seeing a president really seizing the initiative.

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<v Speaker 1>That doesn't excuse what the president is doing. He's acting unconstitutionally,

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<v Speaker 1>but I do think it shows that our constitutional war

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<v Speaker 1>powers really have gotten out of whack. Thanks for being

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<v Speaker 1>on Bloomberg Law. That's profess or own A Hathaway at

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<v Speaker 1>Yale Law School. This is Bloomberg m