War powers: Trump faces legal deadline on Iran

US President Donald Trump is quickly approaching a critical deadline to wrap up his military operations against Iran — or he will find himself in direct breach of US law.

Under the 1973 War Powers Resolution, a US president can only launch a military conflict without congressional approval for a period of 60 days. Once that window closes, Congress must either formally declare war or authorise the continued use of force through specific legislation. If neither occurs, the president is legally mandated to end the operations and withdraw all involved troops.

Even though there is currently a fragile ceasefire between the US and Iran, legal experts agree the resolution remains applicable to the naval troops and ships responsible for maintaining the US blockade of Iranian ports. This raises a significant constitutional confrontation: what happens if the 60-day deadline passes and Trump refuses to pull out?

The War Powers Resolution was passed by Congress over then-President Richard Nixon’s veto in November 1973. It was a landmark piece of legislation designed to curb presidential usurpation of the congressional power to declare war. It came just after the final withdrawal of US troops from the Vietnam War, which had famously not been authorised by Congress. Historically, the law hasn’t been very successful because of its loose legal language, numerous exceptions, and the large number of loopholes that presidents and their advisers have discovered over the decades.

Certainly, no president since Nixon has been significantly constrained by the law. Those who have initiated conflicts without congressional approval have often paid little more than lip service to its provisions. Congress has also contributed to the failure of the War Powers Resolution through its own reluctance to defend its constitutional and statutory rights to declare war. Notwithstanding its past ineffectiveness, it may be many years too early to write off the resolution in the current conflict. The main reason: it provides a unique mechanism for wary Republican lawmakers to try to bring an end to an increasingly unpopular war without appearing to be obstructionist.

The statutory end-date for the war comes into effect by way of two specific sections of the resolution. Under section 4, the president is required to submit a report to Congress within 48 hours of introducing US troops into “hostilities.” This report must explain the constitutional authority under which the action was taken, the justification for the action, and the estimated scope and duration of the involvement. This triggers the 60-day clock under section 5 of the law.

The beauty of this provision, at least as far as members of Congress are concerned, is that it is automatic. Legislators do not have to do anything to implement it. Because no vote is necessary, they do not have to go on record opposing the president’s national security policy unless they choose to intervene. Trump submitted his report on March 2, which means the 60-day deadline expires on May 1. So far, Congress has not responded by declaring war, though Republicans have blocked Democratic legislative efforts to constrain Trump’s ability to act without oversight.

The major difference between this war and other recent conflicts is that this one is going extremely badly for the administration. A new poll by Reuters and Ipsos found that just 34% of Americans support the conflict. This time, there has been no “rally-around-the-flag” effect. Members of Congress, ultra-sensitive to constituent opinion, are not running scared of opposing the president on this issue. Many would be risking electoral backlash by going on the record in support of the war. Republican Senator John Curtis of Utah, for example, has stated he will not support the war after the deadline passes without approval.

Given his general contempt for the Constitution and statute law, Trump will probably disregard the legal mandate to withdraw. He is more likely to claim that the War Powers Resolution is unconstitutional, as Nixon did. He may seek to challenge the law through the courts or claim that it does not apply. Trump is managing an unpopular war with wafer-thin majorities in Congress, only six months out from the midterm election. If US troops are still engaged on May 1, the War Powers Resolution could finally take on the relevance it was intended to have 50 years ago.

The Conversation