Anti-war movement looks to take Trump to court to stop war with Iran

Anti-war groups are lobbying Congress to take President Donald Trump to court on Iran war powers.

al-monitor US President Donald Trump boards Air Force One ahead of a trip to Tennessee, at Joint Base Andrews in Maryland, US, March 6, 2020.  Photo by REUTERS/Tom Brenner.

Mar 11, 2020

The White House has threatened to veto the bipartisan resolution Congress just passed to limit President Donald Trump’s ability to pursue offensive military action against Iran — but invigorated anti-war advocates are already planning their next move.

Some Democratic lawmakers — and multiple anti-war groups who have their ear — are growing increasingly bullish on the prospect of taking Trump to court over unauthorized military action against Iran.

They say they believe that the Republican-held Senate’s 55-45 vote to rebuke Trump over Iran war powers coupled with today’s 227-186 House vote has given Congress the ammunition it needs to pursue a precedent-setting case in the US court system that they hope will allow lawmakers to wrest their war-making authorities back from the White House.

“I definitely think that we need to look into that,” said Rep. Ro Khanna, D-Calif., who revived congressional interest in war powers resolutions when he first began pushing legislation to force Trump to end US support for the Saudi-led coalition against Yemen’s Iran-backed Houthi rebels in 2017. “It’s got to be a conversation by many people in the caucus, but I’d certainly be supportive of it.”

Congress has not authorized war against either Iran or Yemen’s Houthi rebels. The White House maintains that its January strike against Iranian Maj. Gen. Qasem Soleimani was legal as a self-defense measure under the 2002 military authorization to invade Iraq. Additionally, the Trump administration has argued that its military support for the Saudi-led coalition does not constitute “hostilities” under the Vietnam-era War Powers Act, the underlying legislation that paved the way for today’s Iran vote and last year’s Yemen resolution.

Khanna partnered with Sen. Bernie Sanders, I-Vt., to pass the Yemen war powers resolution last year. Trump vetoed the bipartisan resolution, and Democrats did not muster enough Republican votes to override the president. The same dynamic is expected to play out with today’s Iran resolution, introduced by Sen. Tim Kaine, D-Va.

After the Senate passed the Iran resolution last month, Kaine told Al-Monitor that a potential lawsuit could be “down the road.”

“Courts have traditionally been reluctant to referee between Congress and the executive [branch] over the war powers question,” said Kaine. “We just need to keep building on what we have gained here, which is more and more of a bipartisan consensus.”

Indeed, US courts have historically proven hesitant to intervene in separation of powers disputes between Congress and the White House. Just last month a federal appeals court threw out a lawsuit accusing Trump of unconstitutionally accepting payments from foreign governments on the grounds that the 215 Democratic lawmakers who filed the case did not comprise a majority of either the House or the Senate.

But Khanna and anti-war groups in favor of a lawsuit say they believe that the Iran vote — alongside a series of Iran and Yemen votes last year — gives Congress significant ammunition to pursue a war powers case against Trump in the judicial system.

“The difference here is that Congress would have voted,” Khanna told Al-Monitor. “In the past, there hasn’t been a clear voice by Congress.”

Should Trump follow through on his threat to overrule the Kaine resolution, it would mark the seventh veto of his presidency, and the fifth veto related to Iran and its regional allies. In addition to the Yemen war powers resolution, Trump has also vetoed three resolutions that would have restricted some $8 billion in arms sales to the Saudis and Emiratis amid concerns over civilian casualties in their campaign against the Houthis.

Khanna first called on House Speaker Nancy Pelosi, D-Calif., to pursue legal action over US involvement in Yemen’s civil war last year after Trump’s first war powers veto. His remarks mirrored a letter to Pelosi from 12 constitutional scholars. The letter’s leader, Yale University’s Bruce Ackerman, is now calling on Pelosi to use the Iran resolution as the basis for a war powers case against Trump.

“Pelosi should be preparing herself to respond to an escalating constitutional conflict with a veto-insistent Trump,” Ackerman wrote in an American Prospect article last month. “As Speaker of the House, she unquestionably has standing to appeal to the Supreme Court to serve as the ultimate arbiter on this fundamental question.”

Pelosi’s office did not respond to Al-Monitor’s request for comment.

“It would be ideal if she was the lead plaintiff to get other House Democrats to sign on or even some Republicans,” said Hassan El-Tayyab, the legislative manager for Middle East policy at the Friends Committee on National Legislation, one of the advocacy groups pushing for the lawsuit. “But members should press ahead even if they don’t have Pelosi as the lead.”

Still, exercising congressional authority to declare and limit war faces significant headwinds in a legislature that seems to become more partisan every year.

Only six Republicans voted for today’s Iran resolution: Reps. Ken Buck of Colorado, Morgan Griffith of Virginia, Thomas Massie of Kentucky, Tom Reed of New York, David Schweikert of Arizona and Fred Upton of Michigan. And Trump is unlikely to look favorably on lawmakers from his own party who choose to sign onto a lawsuit that directly challenges his authority. 

Nonetheless, there are indicators that there’s significant bipartisan interest in taking back Congress’ authority over national security. The typically partisan House Rules Committee, which sets the parameters for floor activity, convened a rare nonpartisan hearing on the issue last week where legal scholars floated their ideas to reform the War Powers Act.

“Congress unequivocally has this power, and it needs to flex its muscles and exercise it,” said Erica Fein, the advocacy director for Win Without War, a coalition of activist groups that lobbied for the Iran and Yemen war powers resolutions. “I think it’s worth exploring all avenues to reclaim its unequivocal constitutional right to be the part of our government and where we go to war.”