Democrats conflicted over how to limit Trump's war powers

Senate and House Democrats have different strategies over how to limit President TrumpDonald John TrumpTrump says inviting Russia to G7 'a question of common sense' Pentagon chief does not support invoking Insurrection Act Dershowitz: Does President Trump have power to declare martial law? MORE’s power to take military action against Iran.

Senate Democrats are debating among themselves whether to take up a concurrent resolution passed by the House on Thursday limiting Trump’s war powers, or to stick with a proposal sponsored by Sens. Tim KaineTimothy (Tim) Michael KaineOvernight Defense: Trump's move to use military in US sparks backlash | Defense officials take heat | Air Force head calls Floyd's death 'a national tragedy' Pentagon: Esper, Milley 'not aware' of Trump's church photo-op ahead of time Democratic senator plans defense bill amendment to bar using troops against protesters MORE (D-Va.) and Dick DurbinRichard (Dick) Joseph DurbinRosenstein steps back into GOP crosshairs Frustration builds in key committee ahead of Graham subpoena vote  Senate Democrat introduces bill to protect food supply MORE (D-Ill.).

As a concurrent resolution, the House measure doesn’t require Trump’s signature. But it’s not clear whether it would actually tie Trump’s hands. The Supreme Court may ultimately have to decide if it has the binding force of law.

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The Senate bill would have the force of law, and it would be significant if approved by the GOP-controlled chamber. But it does require Trump’s signature and has almost no chance of becoming law since it would be vetoed, and would then need 67 votes to override a veto.

“I know it’s being wrestled with, I haven’t heard any update,” said Sen. Jeff MerkleyJeffrey (Jeff) Alan MerkleySenate Dems press DOJ over coronavirus safety precautions in juvenile detention centers Democratic unity starts to crack in coronavirus liability reform fight Oregon GOP Senate nominee contradicts own campaign by saying she stands with QAnon MORE (D-Ore.), a member of the Foreign Relations Committee.

Speaker Nancy PelosiNancy PelosiTrump congratulates Steve King challenger on GOP primary win The Hill's Morning Report - Protesters' defiance met with calls to listen Calls for police reform sparks divisions in Congress MORE (D-Calif.) on Thursday touted her chamber’s proposal as having “real teeth.” She said it was significant that Trump could not veto it, as he did to a war powers resolution Congress passed last year requiring him to withdraw U.S. forces from the civil war in Yemen.

“We’re taking this path because it does not require a signature of the president of the United States,” she added. “This is a statement of the Congress of the United States and I will not have that statement be diminished by whether the president will veto it or not.”

Key Democratic senators, however, aren’t convinced this is the way to go.

Kaine said that he will press ahead with his own resolution, which has the support of GOP Sens. Mike LeeMichael (Mike) Shumway LeeHillicon Valley: Facebook employees speak up against content decisions | Trump's social media executive order on weak legal ground | Order divides conservatives The Hill's Morning Report - Presented by Facebook - Trump tweets as tensions escalate across US GOP deeply divided over Trump's social media crackdown MORE (Utah) and Rand PaulRandal (Rand) Howard PaulDemocratic senator to offer amendment halting 'military weaponry' given to police Second senator tests positive for coronavirus antibodies Senate Democrats pump brakes on new stimulus checks MORE (Ky.).

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“The one that I have would go to the president’s desk, if it passes,” he said. “I’m likely to call up mine.”

Kaine noted that his resolution, which is privileged and cannot be blocked from receiving a floor vote, is due to be automatically discharged out of the Foreign Relations Committee on Tuesday.

“Mine is on time clock where I could call it up starting next week. Theirs would not be,” he said. “I can get it up promptly and I can get it [passed] on a majority vote.”

Democratic aides in both chambers say that the House-passed war powers resolution would also be considered a privileged measure and guaranteed a vote in the GOP-controlled Senate, but Kaine said it would have to be put on a later timeline since the House just approved it Thursday.

The timing of the war powers debate is in flux because of Trump’s looming impeachment trial.

Pelosi says she will meet with the House Democratic caucus on Tuesday to discuss naming a team of prosecutors and sending the articles of impeachment across the Capitol. As soon as she does, the trial is set to begin immediately.   

Even so, there will be a lull between when senators get sworn in as jurors and the start of opening arguments, when lawmakers will have a chance to act on legislative business.

Kaine has already shopped his legislation to about ten Senate Republicans who are in various stages of reviewing it.

Kaine acknowledged Trump may well veto his war powers resolution but argued that the act of putting it on the president’s desk will send a more powerful message than the concurrent resolution.

“I want to put it on the president’s desk. We did that with the Yemen resolution and even though the president vetoed, they stopped fueling the Saudi jets on the way to bombings. They actually stopped doing the thing we ordered them not to do,” he said, referring to U.S. support of a Saudi-backed coalition fighting in Yemen.

Senate Democrats say they’re keeping their options open and may try to advance both Kaine’s and Pelosi’s competing measures. 

“Those conversations are going on right now,” said a Democratic senator, who requested anonymity to talk about internal discussions. “It doesn’t have to be either/or but I think at some point we should figure out what we’re going to prioritize.”  

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Lee, who backs the Kaine-Durbin bill, disputes Pelosi’s argument that the House-passed resolution will have the force of law.

He pointed to the 1983 Supreme Court decision in INS v. Chadha in which the high court ruled in an opinion penned by then Chief Justice Warren Burger that legislation affecting persons outside the legislative branch must be presented to the president for his signature.

“I was surprised when I saw that that resolution was styled as a [House concurrent resolution.] It makes me wonder why they did it that way or whether it might have been a mistake from the outset,” Lee said.

“Prior to the decision by the Supreme Court in INS v. Chadha 1983, you had had an opportunity for Congress through a concurrent resolution to alter the legal status quo that didn’t require presentment to the president. Post Chadha that went away,” he said.

Lee said the House-passed resolution “could never be more than akin to a sense of the House or a sense of the Senate.”

A senior House Democratic aide said that legal question may have to be decided anew by the federal courts.

“There are arguments for why this part of the war powers resolution might not be binding, but we decided to follow the process in the war powers resolution as our first step. It makes Congressional intent crystal clear and the President should respect that,” the aide said.