Gallagher Statement on War Powers Resolution
Rep. Mike Gallagher (R-WI) today issued the following statement after the House passed H. Con. Res. 83 by a vote of 224 to 194.
“Yesterday, my Democratic colleagues left a classified briefing only to immediately and recklessly trash the quality of intelligence they received and in some cases suggest there was no imminent threat from Soleimani. Yet this weekend – while my colleagues were still on vacation and before they had even reviewed the intelligence underlying the Soleimani strike – Rep. Slotkin decided to introduce a War Powers Resolution (WPR) in order to criticize the strike. The timeline reveals that this resolution has nothing to do with the merits of our actions against Iran’s foremost terrorist, but rather, political messaging.
“In fact, one reason we know my colleagues are not serious is that unlike the proposal in the Senate, the House legislation is a concurrent – not joint – resolution, meaning it would not go to the President’s desk, nor carry the force of law.1 When Congress addressed war powers through a concurrent resolution over the intervention in Somalia in 1994, both the resolution’s sponsor and the Democratic Speaker of the House argued that the resolution was non-binding due to the 1983 Supreme Court case INS v. Chadha. What’s more, according to press reports, this Constitutionally-dubious decision was driven in part by a desire to block a procedural vote on the legislation typically afforded to the House minority.2 The result is bad process on unsound legal footing.3
“Constitutional issues aside, even if this resolution were to pass the Senate and go into effect, little would change for American service members in the Middle East. U.S. troops engaged in the fight against Sunni salafi jihadist groups would still retain the ability to defend themselves when attacked by Iranian-backed shi’ite terrorist proxies. In other words, there would be absolutely no change in our force posture on the ground in Iraq, because United States forces are not actively engaged in hostilities against Iran.
“One thing that would change, however, is the strength of American deterrence in the Middle East. After decades of tepid responses to Iranian aggression, President Trump finally forced Iran to pay a steep price for its violent actions across the region. It should come as no surprise that following this overwhelming response, Iran launched only a perfunctory reprisal. In other words: it has thus far been deterred from further harming Americans. There is a real danger that if Congress signals to the Iranian regime that the President is now constrained in his ability to defend our citizens, the Mullahs may sense an opportunity to inflict damage without reprisal. This would have the perverse effect of incentivizing escalation after successful de-escalation through deterrence.
“Finally, I am concerned that in a rush to use the WPR to score political points, Congress is missing an opportunity to meaningfully reclaim Congressional war powers. Since Congress passed the WPR over President Nixon’s veto on November 7, 1973, it has failed—completely failed—to achieve its noble intent. According to the Congressional Research Service, from 1975 through March 2017, of the 168 reports presidents submitted to Congress in accordance with the WPR, only one triggered the law’s 60-day withdrawal timeline. And in that case, American forces had already disengaged. Thus, in the only instance where a President conceded he was engaging in hostilities and started the 60-90 day WPR clock, it was not even needed.4 This is not the record of an effective tool to restore Congressional war powers. Rather than trying to reanimate the lifeless corpse of the WPR, we need to consider scrapping it entirely and replace it with something that better defines “hostilities” and more fully reclaims Article I responsibilities. I am prepared to work with colleagues on both sides of the aisle to do just that.”
Click here to watch a video of Rep. Gallagher speak about H. Con. Res. 63 on the House floor.
1 “The House bill is “a concurrent resolution, a type of measure that need only be approved by a majority in both chambers, but is not presented to the president for signature and does not carry the independent force of law. As such, it would fall under a separate set of provisions and related expedited procedures under the War Powers Resolution—provisions widely believed to be unconstitutional following the Supreme Court’s 1983 decision in INS v. Chadha.” https://www.lawfareblog.com/long-road-ahead-congressional-resolutions-iran
2 “Democrats were concerned about a similar situation happening with the Iran war powers measure, so instead of filing it as a joint resolution, which requires an MTR vote, they filed it as a concurrent resolution, which does not.” https://www.rollcall.com/news/house-vote-war-powers-thursday-following-iran-escalation
3 “Since Section 5(c) requires forces to be removed by the President if Congress so directs by a concurrent resolution, it is constitutionally suspect under the reasoning applied by the Court.” https://fas.org/sgp/crs/natsec/R42699.pdf
4 “From 1975 through March 2017, Presidents have submitted 168 reports as the result of the War Powers Resolution, but only one, the 1975 Mayaguez seizure, cited Section 4(a)(1), which triggers the 60-day withdrawal requirement, and in this case the military action was completed and U.S. armed forces had disengaged from the area of conflict when the report was made.”  https://fas.org/sgp/crs/natsec/R42699.pdf