Senate delivers a blow to the Imperial Presidency

Only a president as stubborn and heedless as Donald Trump could have committed himself so implacably to such an unpopular and inexplicable war — with such an unsavory and murderous ally — as to stir an otherwise submissive Senate to actively assert war powers it has blithely ceded to the executive branch for at least 17 years, if not all the way back to the Vietnam War.

But that’s exactly what Trump did by refusing to disengage from the calamitous Saudi-led bombing campaign laying waste to Yemen – even after the Saudis used American intelligence and bombs to target civilians; even after more than 85,000 Yemeni children died of starvation; even after the United Nations labeled it “the worst man-made humanitarian crisis of our time;” and even after the war’s architect, Saudi Crown Prince Mohammed bin Salman, was determined by U.S. intelligence officials to have ordered the ambush execution of a U.S.-based journalist.

And the Senate responded on Thursday with a resounding, bipartisan, 56-41 vote to demand an end to U.S. military support to the Saudi war in Yemen.

Other presidents might have not have pushed things this far, if not for moral reasons then for political ones. “I think even a normal Republican president would have given up by now,” said Mark Weisbrot, the president of Just Foreign Policy.

And it’s not as if Trump has strongly held principles about such things. Weisbrot speculated that perhaps Trump was letting his ultra-hawkish national security adviser John Bolton make the call.

Regardless, the Senate has woken from a long slumber during which its Constitutional role as the only branch entitled to declare war withered and the imperial presidency grew out of control, with the commander-in-chief asserting broad unilateral powers to engage in hostilities even when there was nothing remotely like an immediate threat to the American people.

Suddenly, on Thursday, the Senate was standing tall. “The bipartisan character of the vote transformed the Senate’s decision into a fundamental ratification of the enduring significance of the War Powers Resolution,” Yale law professor Bruce Ackerman wrote me in an email.

It was the Senate’s very first invocation of the resolution since it was passed in 1973 — over the veto of Richard Nixon — to check the president’s power to commit U.S. forces to an armed conflict without the consent of Congress.

“It was a very big deal,” said Andrea J. Prasow, deputy Washington director for Human Right Watch.

“It’s a precedent that anybody who likes war doesn’t want,” said Weisbrot.

It also changes the media narrative significantly – and maybe permanently.

“Reporters and editors couldn’t get the idea that Congress actually has the power under the Constitution — reaffirmed by the War Powers Resolution — to decide whether the U.S. military can participate in a war,” Weisbrot said. “The political culture surrounding the imperial presidency is so strong.”

And although some pundits are saying the vote was more about rebuking the Saudis for the murder of Jamal Khashoggi than it was about Yemen and reasserting war powers, the fact is that both houses of Congress were already well on their way to taking action against the war before Khashoggi was killed – and even before a spate of particularly brutal bombings targeting civilians, including a devastating attack on a school bus in early August, killing 40 children.

As I wrote in September, it was more than a year ago that the House overwhelmingly passed (336 to 30) a resolution stating that Congress had not authorized U.S. military assistance in Yemen. And the Senate resolution that passed on Thursday almost passed in March.

Nothing more will happen during this Congress. Ackerman called out House Speaker Paul Ryan for using an amendment to the omnibus Farm Bill to suspend the War Powers Resolution’s mandate that explicitly prevents congressional leaders from blocking a floor vote.

With support from top House Democrats, the resolution is sure to come up – and win passage – in the House during the next congressional session.

Ackerman worries that Senate Majority Leader Mitch McConnell will follow Ryan’s lead and illegally refuse to allow the House bill onto the Senate floor. Weisbrot argued that if McConnell had a way to block a vote, he would have done so before Thursday’s session.

And the ACLU has expressed strong concerns that the language of the resolution is too vague to have much practical effect even if both chambers pass it – and override a veto.

So what’s next for a newly assertive Congress?

“This one’s not over yet, so everyone I know is focusing on this, because this is the most people dying,” Weisbrot said. But, he noted, “it’ll have effects on other wars, because it’s establishing a number or precedents.”

Prasow of Human Rights Watch said she hopes Congress starts demanding more information about where the military is involved overseas. “What I would love to see the new Congress take up is secrecy with respect to U.S. use of force,” she said.

But Mariah Zeisberg, a political science professor at the University of Michigan and author of War Powers The Politics of Constitutional Authority, was less impressed by the Senate’s apparent turnaround.

“The challenge is politically significant because Saudi conduct in the war in Yemen is significant and because Khashoggi’s murder is significant,” she said. “But I don’t see this as a resurgent Congress reasserting its war powers.”

The problem, she explained, is that the War Powers Resolution is too deferential to the presidency. “That the resolution must be approved by the president to become law tells us that this is not a constitutional challenge so much as a political one,” she said.

“That certain legislators want to portray any questioning whatsoever of the presidency as a challenge of constitutional proportions tells us more about degraded norms in Congress than it does about the Constitution.”

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