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Alexis Madrigal: Welcome to Forum. I’m Alexis Madrigal. The war in Iran is nearly two months old, and by a plain reading of the law of the land—the War Powers Resolution, specifically—the president should have to secure official approval from Congress for this conflict by tomorrow, May 1. But will that happen? You may have noticed that presidents have found ways to skirt this law since it was passed during the Nixon administration. Does it still matter? And what wrangling is happening in Congress?
Joining us to discuss this morning, we’ve got an all-star cast. We’re beginning with Harold Hongju Koh, Sterling Professor of International Law at Yale Law School and author of The National Security Constitution in the Twenty-First Century. Welcome, Harold.
Harold Hongju Koh: Thank you.
Alexis Madrigal: So tell us about the War Powers Resolution—what was it intended to do, and has it actually been the check on presidential power that perhaps Congress intended?
Harold Hongju Koh: The War Powers Resolution was adopted in 1973, and you can think of it as a “no more Vietnams” statute. It was designed to prevent what happened during the Vietnam War, which is a slow, creeping war that ends up taking a huge amount of resources, human capacity, and time.
The way it was designed to work is that there’s an automatic trigger when armed forces of the United States—that’s the term used—are introduced into the land, sea, or airspace of another country. When that event occurs, 60 days later, the president either removes the troops or gets approval from Congress.
Now, there’s a catch that may affect this now, which is that the president can extend for another 30 days by certifying to Congress in writing that an unavoidable military necessity requires it regarding the safety of our troops. My guess is we may see that today or tomorrow from the Trump administration. But even so, the net result is that under the law, after the deadline has passed, there’s no more claim that the operation is lawful under U.S. law.
Alexis Madrigal: Has the Trump administration given any sign that it actually sees this law as applying to the circumstances in Iran?
Harold Hongju Koh: Well, it has notified Congress of the introduction of armed forces into the land, sea, or airspace of Iran. You could argue that that act, which took place on March 2, is a trigger independently of the fact of the introduction.
But you asked whether this has affected things. You’ll notice that if armed forces are required, then people who are, say, CIA agents—who are not armed forces—are not covered. If the timetable is 60 days, then a short operation that lasts, say, 12 hours—like removing Nicolás Maduro—is not covered. And since it involves human intervention, if you send in drones or cyber commands, that’s also not covered. So arguably, what the War Powers Resolution has done is drive U.S. military action into unregulated zones.
Alexis Madrigal: Let’s actually play a cut. We have Pete Hegseth in Congress yesterday. Let’s listen.
Pete Hegseth (clip): The biggest adversary we face at this point are the reckless, feckless, and defeatist words of congressional Democrats and some Republicans.
Alexis Madrigal: That was Pete Hegseth. Let’s bring in a U.S. congressman representing the 10th District of California—that’s in the East Bay, down near Fremont and a piece of San Jose. Mark DeSaulnier, welcome to the show.
Mark DeSaulnier: Thank you.
Alexis Madrigal: So, Congressman, you hear that from Pete Hegseth. What do you think?
Mark DeSaulnier: First off, let me just briefly correct you—my district is north of the area you just described, mostly Contra Costa and a small part of Alameda.
Well, the secretary is unaware of American democracy and dissent, and that’s true for this administration. That’s his opinion. I feel like public oversight and disagreement are important. We can see it in the poll numbers—the American public disagrees with him as well.
Alexis Madrigal: What has been happening in Congress with your colleagues among Democrats—and maybe even some Republicans—to try to stop the war?
Mark DeSaulnier: We’ve been very active on our side. We’ve tried multiple times to bring up a new War Powers Act. We have a privileged resolution that the ranking Democrat on Foreign Affairs is prepared to introduce, which would force a vote and put members on the spot.
Unfortunately, the speaker has put up every roadblock to prevent us from slowing things down, because he takes orders, in my opinion, directly from the president of the United States.
Alexis Madrigal: So why have congressional Democrats continued to propose resolutions even if it’s not possible to get them through?
Mark DeSaulnier: Because we have to put pressure on. All we need is three Republicans to agree with us and keep Democrats united—and we’ve largely been successful in that.
We have to keep the pressure on. Otherwise, we’re not doing our job. People get frustrated, particularly in areas like the Bay Area, because it’s hard for us to believe how differently the rest of the country views this administration. But we have to keep pushing every way we can.
This is an immoral, unethical, illegal war, and it’s got huge consequences—which this administration, in its thoughtless manner, didn’t even stop to consider. Not to mention the people who have died because of these actions, including 15 American service members.
Alexis Madrigal: So what happens if this War Powers deadline comes and goes and the administration doesn’t seek approval? Will congressional Democrats take other actions?
Mark DeSaulnier: Oh, we will work with our partners to go to court and try to stop them. We’ve been largely successful with his executive orders. Last time I checked, I think almost 90% have been found by the courts to be illegal.
But that takes time. One of the things we’ve got to learn is that we weren’t prepared for a president as unethical as this one. Even after his first term, the second term has been exponentially worse.
Alexis Madrigal: Thank you so much. That was Mark DeSaulnier, U.S. congressman representing California’s 10th District—as he noted, a bit further north than I initially said, in Contra Costa County. Thank you for joining us.
Mark DeSaulnier: My pleasure. Thanks for having me.
Alexis Madrigal: Let’s add another voice to the discussion. Robert Jimison is a congressional reporter covering foreign policy, defense, and national security for The New York Times. Welcome.
Robert Jimison: Glad to be here.
Alexis Madrigal: Robert, what’s happening with congressional Republicans right now?
Robert Jimison: As you said earlier, we’re approaching that 60-day statutory deadline, so there are a lot of conversations behind the scenes about what happens next. Should there be an authorization introduced that would grant the president some—if not limited—authority to continue the war?
There are also a number of Republicans considering joining Democrats on a War Powers resolution if the administration isn’t more clear about its aims.
One thing the War Powers Resolution does that we haven’t touched on yet is require periodic reporting. Once hostilities begin, the administration must stay in touch with Congress about the duration and conduct of the war.
We saw that early on with regular hearings and classified briefings from top officials, but that has largely tapered off—much to the frustration of many Republicans, who feel left in the dark. And if there’s one thing about members of Congress, they don’t like feeling excluded from what’s happening in Washington. That tension is really starting to surface.
Alexis Madrigal: You heard Harold Koh earlier mention a possible 30-day extension. What are you hearing about Republicans trying to give the administration more time?
Robert Jimison: My understanding is that the 30-day extension is specifically for withdrawal. The president would have to certify that additional time is needed to safely remove U.S. forces—not to continue offensive operations.
So if the president reaches the deadline tomorrow and wants that extension, he has to notify Congress that it’s necessary to end the conflict safely.
But this moment is pivotal—and it coincides with a congressional recess. Both chambers are out at the end of the day tomorrow, which gives them a bit of breathing room before fully confronting the deadline.
Still, it’s a real deadline. We saw Senator John Curtis of Utah say recently that he would not support continuing the campaign without the White House coming to Congress for approval and providing more clarity about its goals.
Alexis Madrigal: Harold Hongju Koh, are there enforcement mechanisms? If this doesn’t happen—if there’s no extension—does the war just continue anyway?
Harold Hongju Koh: There are two main mechanisms. One is funding—Congress controls the power of the purse. This war is costing about a billion dollars a day. At some point, the administration will need to request more funding, and Congress could refuse.
The second is the courts. In the past, courts have ruled on whether the conditions of statutes like this have been met. Early U.S. courts frequently ruled on whether a war legally existed, and this is an undeclared war.
You’d need a plaintiff with standing—someone directly affected. During the first Gulf War, a soldier ordered to deploy was found to have standing. A federal judge even suggested that, in theory, an injunction could be issued against a war if the legal conditions weren’t met.
So I think you’re going to see some legal challenges filed.
Alexis Madrigal: We are talking about the war in Iran, lawmakers’ efforts to stop it, and the legal wrangling involved. You’ve been hearing from Harold Hongju Koh, Sterling Professor of International Law at Yale Law School, and Robert Jimison, congressional reporter for The New York Times. Earlier, we heard from Congressman Mark DeSaulnier.
If you’ve got questions, give us a call: 866-733-6786, or email forum@kqed.org. We’ll be back with more right after the break.
