The measure the House adopted this afternoon, 215 votes to 208, is a concurrent resolution. Not a bill, not a joint resolution. A concurrent resolution, which is a measure adopted by both chambers of Congress and not presented to the president for signature.
That single procedural choice is the whole of what happened today, and it is a deliberate collision with a Supreme Court decision from 1983.
What follows is an accounting of what the choice costs, what it might buy, and who pays if it fails.
Why the form was chosen
The War Powers Resolution of 1973 provides for Congress to direct the removal of American forces from hostilities. In its original design, that direction could be given by concurrent resolution, and the reason is arithmetic.
A joint resolution is legislation. It goes to the president, who vetoes it, and overriding a veto takes two thirds of both chambers. Neither chamber is anywhere near two thirds on this question; today’s margin was seven votes.
A concurrent resolution is not presented to the president at all. On the face of the 1973 statute, both chambers adopt it and the direction takes effect, and no veto is available because there is nothing to veto.
That is why it was written that way in 1973, and it is why members who want this to have force have reached for it now.
The problem, which everybody involved knows about
In 1983 the Supreme Court decided INS v. Chadha, a case about immigration that settled a question about legislative procedure.
The Court held that when Congress acts in a way that alters legal rights and duties outside the legislative branch, it must act through the full constitutional process: passage by both chambers and presentment to the president. A mechanism by which Congress reverses an executive action without presentment, which is what a legislative veto is, does not satisfy that.
The concurrent resolution provision of the War Powers Resolution is, structurally, a legislative veto. It has been widely regarded as unenforceable since 1983 for exactly that reason, and no administration of either party has accepted that it binds.
The word the whole statute turns on
Before the ledger, a definitional point that has done more to hollow out this Act than Chadha did.
The 1973 statute is triggered by the introduction of forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated. Hostilities is not defined anywhere in it.
Administrations of both parties have used that gap consistently. Operations have been characterized as not rising to hostilities where American personnel were not exchanging fire on the ground, where the engagement was conducted from the air or at standoff range, or where the American role was described as support to somebody else’s forces. On each occasion the sixty day clock was said not to have started, because the thing that starts it had not occurred.
So a member of Congress who wants to invoke the Act has two arguments to win rather than one: that the mechanism is enforceable, which Chadha put in doubt, and that the situation is hostilities at all, which the executive gets to characterize first.
The ledger
What the choice costs. Legal certainty, entirely. A joint resolution that passed both chambers and survived a veto would be law and nobody could argue about it. This measure will be characterized by the executive as advisory, and the characterization has a serious judicial decision behind it.
What it might buy. A test. The Chadha holding is about legislative vetoes generally; it was not a war powers case, and the argument available here is that the constitutional allocation of the war power is different from an administrative reversal of an immigration decision. That argument has been made in law reviews for forty years and has never been ruled on, because nobody has ever put a concurrent resolution on the table and dared the executive to ignore it.
Who pays if it fails. Congress, and not only on this question. A concurrent resolution that both chambers adopt and the executive ignores without consequence is a public demonstration that the instrument is empty, and it is considerably harder to reach for a second time after that.
What it does not cost
Worth stating, because the cynical reading of this is that it is theater and that is not quite right.
The vote is on the record. Every member has now taken a position on whether this war should continue, at a moment when the answer was not obvious, and that record exists regardless of what the measure achieves legally.
And the political effect of both chambers formally directing an end to hostilities is not nothing even if the legal effect is contested. Governments read them. Allies read them. It changes the assumptions other parties make about how long an American commitment will last.
There is a cost to the members themselves that is worth noting. A concurrent resolution cannot be signed into law, which means a member voting for it is casting a vote that carries no legal consequence and full political consequence. That is the least attractive combination available in that chamber, and two hundred and fifteen of them did it anyway.
What would actually settle it
A confrontation, and there are two routes to one.
The executive could comply while denying any obligation to, which is the most likely outcome and which settles nothing. Operations wind down, everybody claims the result, and the constitutional question goes back on the shelf for the next occasion.
Or the executive could refuse, and somebody with standing could sue. That is the case the academics have been waiting for, and it is also the case courts have spent fifty years finding ways not to decide, on political question and standing grounds. A judiciary that has declined to referee this dispute through Vietnam, Libya and everything since is unlikely to volunteer now.
The part that does not resolve
The Senate has not voted. If it does not, none of the above matters and today was a message.
If it does, then Congress will have done, deliberately and with its eyes open, the thing the Supreme Court told it in 1983 it could not do, and the response will come from an administration with every incentive to treat the resolution as a nullity and considerable legal authority for doing so.
At which point the country finds out whether the War Powers Resolution contains an enforceable mechanism or whether it has been, for forty three years, a statute whose operative provision was removed by a case about a Kenyan student’s visa.
