The Senate Undertakes a War Powers Resolution. Now What?

CPI Staff — Friday, November 30, 2018

In a surprising vote on Wednesday, the Senate moved forward debate on a resolution of disapproval on U.S. participation in the conflict in Yemen.

The resolution, offered by Senators Bernie Sanders (I-Vt.), Mike Lee (R-Utah) and Chris Murphy (D-Ct.), was offered under the War Powers Act (WPA). Under the terms of the law, which was passed in 1973, the “President in every possible instance shall consult with Congress before introducing” U.S. armed forces into hostilities. Specifically, the president is required to report to Congress any introduction of U.S. forces into hostilities. Once submitted, the use of force must be terminated within 60 to 90 days, unless Congress authorizes the use of force, or extends it.

The War Powers Act also lays out procedures for Congress to approve — or disapprove — the use of armed forces. In particular, such resolutions are given “privileged” status in the Senate, meaning they have special, expedited treatment.

In the case of the Sanders/Lee/Murphy resolution, the senators sought to disapprove of U.S. military activity in Yemen, which has so far constituted munitions, mid-air refueling, targeting assistance and logistical support to the Saudi-led coalition. The resolution, S.J.Res.54, would prohibit future U.S. participation in the conflict without approval by Congress.

On Wednesday, the Senate voted to bring the resolution from committee to the floor of the Senate for consideration. Under regular order, the Senate will next vote on a Motion to Proceed; in other words, a vote to make consideration official. Following that vote, the law provides for 10 hours of debate.

After the 10 hours of debate have been run, things get interesting. The WPA itself is vague on the process for amending the resolution, stating only that the joint resolution “shall be amendable.”  

This opens up a wide avenue of opportunities for the Senate, many of which have never been done before. On this point, the Senate has a few options.

Enter into a vote-a-rama. Based on the vague way the law is written, it leaves open the possibility that the Senate could proceed to a vote-a-rama: unlimited amendments, for an unlimited time (basically, the senators can offer amendments until they run out of steam). This is particularly interesting because no germaneness or relevance standards apply. In other scenarios, the Senate requires amendments to be strictly relevant to the legislation at hand.

That is, when germaneness is required, all amendments must be closely related to the subject matter of the legislation. Under strict germaneness, you would not be able to offer an amendment about health care to a bill about transportation, for example.

But under the War Powers procedures, there aren’t any germaneness requirements. If the Senate were to proceed in this manner, the joint resolution would be open to amendments dealing with literally any policy matter that any senator wanted to offer. Amendments on Trump’s border wall? Pro-life policies? Endangered species? Fire away!

What’s even more compelling about this option is that, because the resolution is privileged, it cannot be filibustered, and thus cloture (which requires 60 votes) is not required. This means that whatever amendments are added to the resolution are considered at a simple majority threshold, and the resolution is then passed at a simple majority threshold.

In other words, if the Senate proceeds to a vote-a-rama under the WPA, the Senate will have a chance to pass any legislation it wants at a simple majority.

Impose germaneness requirements via the parliamentarian or a unanimous consent agreement. While the Senate has many rules and precedents, they can all be rendered moot if all senators agree to set them aside. This means that while the WPA does not impose germaneness standards on its corresponding resolutions, germaneness could still be applied if all senators decide to do so. A unanimous consent agreement set up this way could limit amendments, select certain amendments to be offered, or impose strict requirements for germaneness that limits what amendments can be offered.

Challenge the resolution’s privileged status. The privilege given to resolutions under the WPA is what makes consideration unique. The matter cannot be filibustered, nor can the corresponding amendments. However, an argument could be made that if amendments unrelated to Yemen are added to the resolution, it should no longer qualify for special status.

If the privilege was stripped from the resolution, it would be treated like other legislative matters in the Senate — subject to the filibuster, and thus a 60 vote threshold, as well as germaneness requirements for the bill if cloture is invoked. (When the House considered a similar WPA resolution earlier this month, the House Rules Committee voted to strip the privilege from the measure. It had the effect of blocking consideration of the resolution.)

Given what happened in the House, and the Senate’s general distaste for open amendment processes, the most likely outcome for the Yemen resolution at this point is that it will lose its privilege if amendments are added.

How the Senate proceeds on this point will likely be determined in the next several days. However, it should be noted that this represents a significant opportunity for the GOP in the waning days of its unified government majority. Under a War Powers vote-a-rama, if they choose to go that route, significant policy gains could be moved through the Senate without having to overcome a filibuster.