[Congressional Record Volume 166, Number 3 (Tuesday, January 7, 2020)]
[Senate]
[Pages S46-S47]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         War Powers Resolution

  Mr. KAINE. Madam President, I rise today to discuss the War Powers 
Resolution that I filed on Friday, January 3, with Senator Durbin.
  I spoke yesterday at some length about the painful history of 
relations between Iran and the United States and the escalating 
tensions in the last 3 years that have brought us to the brink of war. 
As we stand at the brink, with military actions by Iran and the United 
States causing battlefield casualties on the other side, I believe that 
it is imperative for Congress to reassert itself and make plain that no 
President should have the ability to take the Nation to war on his or 
her own.
  Let me talk about the Constitution and about the value judgment 
underlying the allocation of war powers in the Constitution and then 
the resolution that is now pending, having been filed in the Senate.
  First, on the Constitution, the Constitution as drafted in 1787 has a 
series of provisions. Some are somewhat vague. In the Bill of Rights, 
what is an unreasonable search? Some are extremely precise. You have to 
be 35 years old to be President. If you look at the Constitution, you 
can see a variety of provisions, some more specific and some a little 
more open-ended.
  Actually, the war powers part of the Constitution--though not 
completely without ambiguity--is one of the clearest parts of the 
Constitution. In article I, the power to declare war is given to 
Congress, not to the President and not to the Judiciary--to Congress.
  In article II, the President is declared to be the Commander in Chief 
of the military. If you read the constitutional debates at the time, 
what emerges is a fairly clear understanding by those who were at the 
Constitutional Convention in Philadelphia that was both clear but also 
quite unusual. The understanding was that for a war to start, Congress 
should vote for it to be initiated, but then, once started, the last 
thing you would need is 535 commanders in chief. So once Congress had 
voted to start a war, at that point the prosecution of the war becomes 
for the President and the military command, not to be micromanaged by 
535 Members of Congress.
  This was fairly clear, and it was very unusual. It was very unusual 
because at that point in history, in 1787, war and the declaration of 
war was not primarily legislative. It was for the executive. It was for 
the King, for the Monarch, for the Pope, for the Emperor, or for the 
Sultan. War had been, throughout history, an executive function, not a 
legislative function. But the Framers of the Constitution and the 
constitutional debates made plain that they were really trying to 
change human history, at least in so far as the United States went. 
Then, in this country, the initiation of war would be done by Congress.
  Why was it done that way? Well, we have the virtue of a Virginian who 
was not only one of the drafters of the Constitution but who kept notes 
of the Constitutional Convention and then wrote letters about what they 
intended. Ten years after the Constitution was written in 1787, James 
Madison wrote a letter to Thomas Jefferson and directly addressed why 
it is that the power to declare war is something for Congress. He said 
this: ``The Constitution supposes, what the History of all Governments 
demonstrates, that the Executive is the branch of power most interested 
in war, and most prone to it.'' For this reason, we have ``with studied 
care, vested the question of war in the Legislature.''
  They recognized that Executives were prone to war, and they wanted 
the legislature to have to sign off on the initiation of war. It was 
unusual then, and it is unusual now that the initiation of war is to be 
left to the legislature. Why is that provision in the Constitution? Why 
would we want to leave the question about whether war should be started 
to Congress rather than let the President do it as would be the case in 
other nations? It is about a value judgment.
  As important as the constitutional provision is, I would argue that 
what is more important is the value judgment that underlies this 
requirement of congressional authorization, and the value judgment is 
about the men and women who serve in our military. Any war runs the 
risk that the young men and women who serve in our military could lose 
their lives or could be injured or could see their friends lose their 
lives or be injured. When we send troops into war, they may suffer an 
injury--traumatic brain injury, post-traumatic stress disorder--that 
will affect the entire remainder of their lives in dramatic ways. If we 
affect their lives in that way, we affect the lives of their families 
and friends.
  The value judgment that sort of served as the pillar behind the 
provision that says Congress has to authorize war is this: If we are 
going to force young men and women to risk their lives, it should be 
based on a considered and open debate and a vote in full view of the 
American public. Then, there should be a vote about whether we are at 
war. If at the end of that debate--with the questions that get asked 
and the trading of perspectives--before the people's elected 
legislative branch, the legislature says that this is in the national 
interest and we should be at war, then, for those men and women who 
serve--yes, they are going to serve and risk their lives and risk their 
health and risk what might happen to them for the rest of their life--
we will only ask them to do that if there is a considered judgment that 
war is in the national interest.
  That is the value judgment that underlies the most unusual part of 
the Constitution, that war can't be started except by Congress. If we 
have that debate and vote, then, it is a fair request to ask that of 
people--like my boy in the Marines or the 1 million-plus people who 
serve in the military. It is a fair request to deploy them and have 
them risk their lives.
  But how dare we order troops into harm's way, where they could risk 
their lives or health possibly for the rest of their life, if we in 
Congress are unwilling to have a debate and have a vote. Sadly, 
throughout the history of this country--and this is a completely 
nonpartisan statement--with Whigs and Federalists, Democrats and 
Republicans, and with different parties in control of the legislative 
bodies and different parties represented in the White House, Congress 
has managed to figure out a way to avoid debate and avoid voting if 
they can.
  War votes are tough. I have had to cast two during the time I have 
been in the Senate as a member of the Foreign Relations Committee. I 
have cast thousands of votes in my life as a city council member and as 
a Senator. I will tell you that a war vote is categorically different 
than any other vote you will ever cast. They are hard. They can be 
unpopular. There are going to be bad consequences of a war vote. There 
may be an understandable human tradition in Congress to try to avoid 
it, but it is a responsibility that cannot be avoided. How can we order 
people to risk their lives when we are unwilling to risk the political 
challenges of a vote on war? That is the constitutional history. That 
is why the article I branch--the first among equals--is charged with 
the responsibility of initiating war, and that is the value judgment 
that underlies that constitutional provision.
  What does our resolution do? Our resolution is filed pursuant to the 
War Powers Act. The War Powers Act was passed at the tail end of the 
Vietnam war. Senator Durbin did a good job yesterday of sort of going 
into the history of the passage of the War Powers Act. The War Powers 
Act was trying to do two things. In the aftermath of the Vietnam war, 
they were analyzing what had gone wrong during it. There were a number 
of points along the way where the President did not keep Congress 
informed. There was a bombing campaign that started in Laos, for 
example, during the Vietnam war, about which Congress wasn't informed, 
and there were activities in Cambodia about which Congress wasn't 
informed.
  Then, the second thing we were trying to do was not just to require 
Presidents to inform Congress but also to give Congress the ability to 
have a debate and have a vote on the floor in case the President 
started hostilities without coming to Congress. The President should 
keep Congress informed and not hide the ball from Congress, and 
Congress needs a procedure to stop a war that is initiated by a 
President who doesn't come to Congress.
  Here is the procedure under which we have filed our resolution. If a 
President

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puts U.S. troops into hostilities without a congressional 
authorization--even if the President claims a legal right to do so--
self-defense, article II power--but if the President puts U.S. troops 
into hostilities without a congressional authorization, any Member of 
Congress can file a resolution to remove the U.S. troops from 
hostilities and force a vote on that resolution within a prompt period 
of time. That is the resolution Senator Durbin and I filed last Friday.
  President Trump has engaged the United States in hostilities with 
Iran. People have different points of view about whether that is a good 
thing or bad thing, but now that there are battlefield casualties on 
both the U.S. and Iranian sides, it is clear that this provision of the 
statute has been met. We are engaged in hostilities with Iran. Not only 
are the United States and Iran engaged in hostilities that have 
inflicted casualties on the other side, but the President is 
essentially acknowledging that we are in hostilities because he is 
sending War Powers notices to Congress--one in November and one last 
Saturday--reporting on his actions and saying that the reports are 
consistent with the War Powers Act. He recognizes that hostilities are 
underway.
  The current hostilities are not pursuant to a previously passed 
congressional authorization. The 2001 authorization for use of military 
force authorized military action against the perpetrators of the 9/11 
attack. Iran was not a perpetrator of the 9/11 attack, and there is no 
argument that they are covered by that authorization. There was a 
separate authorization passed by Congress in 2002. That is the most 
recent one that has been passed. It authorized action to topple the 
Iraqi Government of Saddam Hussein. That government is long gone, and 
that authorization does not permit attacks on Iran or on the current 
Iraqi leadership, such as the individuals who were killed in the two 
sets of U.S. strikes. With these two threshold questions met, 
hostilities are underway as defined by the War Powers Act, and they are 
not subject to a previous congressional authorization.
  We have now filed a resolution to get Congress to reassert its 
constitutional role. The resolution demands that U.S. forces be 
withdrawn from hostilities against Iran unless Congress affirmatively 
passes a declaration of war or authorization, or the United States 
needs to defend itself from an imminent attack.
  If my resolution passes, Congress would still have the ability to 
pass an authorization, if it chose to, and the United States would 
still be able to defend itself against imminent attack, but the 
President could not act on his own to start a war with Iran except in 
those circumstances.
  The resolution does not require that U.S. troops withdraw from the 
region. We are doing many things in the region. Thousands of Americans 
are there partaking in missions that increase the security of the 
United States and our allies. There is no requirement that we withdraw 
from the region. These missions include security cooperation with 
partner forces, fighting against elements of al-Qaida, ISIS, and the 
Taliban, and ensuring the safe passage of commercial vehicles through 
freedom of navigation operations. All those activities that are being 
conducted by the United States in the region can continue.
  The resolution does not hold those forces into question or question 
their mission.
  The only thing the resolution would accomplish, if passed, is to back 
the U.S. troops away from engagement and hostilities with Iran unless 
for imminent defense or pursuant to a separate authorization.
  I would hope to have the support of all my colleagues on this 
resolution. Its passage would preserve the option of U.S. military 
action for self-defense. It would preserve the ability of Congress to 
declare war or pass a war authorization. It would only prohibit this 
President or any President from taking us to war on his own.
  I heard one colleague say: ``The last thing America needs is 535 
Commanders in Chief.'' I completely agree. Once Congress authorizes a 
war, it should be up to the Commander and the military leadership to 
wage that war and make the tactical decisions about how to fight it, 
but the question of whether we should be at war at all is one that is 
specifically left to Congress.
  Let me finish by again focusing on our troops. So many members of the 
military were home for the holidays, enjoying time with their families, 
and then received surprise notices that they must redeploy to the 
Middle East yet again.
  Imagine the cost of two decades of war on these troops and their 
families. Some of these folks have deployed over and over and over 
again. Imagine being at home at Christmas and receiving the notice you 
have to deploy yet again to the Middle East.
  We are living in a challenging time. Many Americans know nothing but 
permanent war. We have been at war since 2001. There are Americans, 
including Americans in the military, that that has been their whole 
life. That is all they know. Yet, at the same time, many Americans know 
nothing about war. Because we have an all-volunteer service, many 
American families are completely untouched by the war. Only 1 percent 
of our adult population serves in the military.
  We have an interesting dynamic that may be sort of unique to our 
history, whether we have been at war for 20 years and some only know 
permanent war, while many other American families know nothing about 
war because members of their families don't serve in the military.
  We put war on a footing where it can go on forever, sort of like on 
``Executive autopilot'' by Presidential order, and Congress, in my 
view--and, again, this is bipartisan--has hidden from its 
responsibilities.
  At this moment of very grave danger, where both Americans and 
Iranians are losing their lives in hostilities, it is time for Congress 
to shoulder the burden of making the most important decision we will 
ever face. That is why I intend to bring this resolution to the floor 
of the Senate and ask my colleagues to debate and vote on it in the 
coming weeks.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. MARKEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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