Bills
| 3.23.22

Should Certain Conditions in Syria be Met Before U.S. Troops are Withdrawn? (H.R. 914)

Do you support or oppose this bill?

What is H.R. 914?

(Updated January 9, 2020)

This bill — the Responsible Withdrawal from Syria Act — would prohibit the use of funds to draw down U.S. troop presence in Syria below 1,500 unless and until the Secretary of Defense, Secretary of State, and the Director of National Intelligence submit a report to Congress addressing critical concerns. This report would be required to address 16 key issues concerning national security, such as the current strength of ISIS, regional countries’ commitment to Syria’s reconstruction, the risks involved with conducting counter-ISIS operations following with a withdrawal, and the Syrian administration’s military and political strategy for meeting any remaining threat from ISIS. 

Argument in favor

A troop drawdown from Syria needs to be carefully considered. Given President Donald Trump’s rash announcement of plans to reduce troop levels in the country without adequate preparation in late 2018, and the recent troop movements after Turkey’s incursion in Syria, it’s important to put guardrails in place to prevent the president from acting unilaterally.

Argument opposed

Any effort to prohibit the president, who is the military’s commander-in-chief, from making decisions on troop deployments is likely unconstitutional unconstitutional. Modern presidents have asserted broad war powers, including over troop deployments and overseas conflicts, so it’s not clear courts would uphold this bill if enacted.

Impact

U.S. troops in Syria; Syria; Congress; Secretary of Defense; Secretary of State; and the Director of National Intelligence.

Cost of H.R. 914

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Tom Malinowski (D-NJ) introduced this bill to limit the use of funds to prevent the U.S. from withdrawing its forces from Syria until the decision to do so can be proven to benefit both the United States’ and its regional allies’ national security interests. 

Lead Republican cosponsor Rep. Van Taylor (R-TX) says: 

“While every effort should be made to reach lasting solutions through diplomacy, the reality remains that the United States must stand ready to protect our interests and the security of our allies in the Middle East. We must also ensure that our actions don’t contribute to a resurgence of terrorism in the region or to the expanded influence of malign foreign actors like Iran or Russia in Syria. I led a Marine reconnaissance platoon in Iraq where we lived the creed, ‘leave no one behind.’ This applies not only to Americans fighting overseas but also to those fighting with us for the cause.”

Harvard Law professor Noah Feldman argues that this bill would “subvert the Constitution” to the point of being unconstitutional, as it interferes with the president’s power as commander in chief to make the tactical decisions that are needed amid amid hostilities and in foreign policy: 

“Ordinarily, there’s no problem with Congress telling the president how to spend money — or how not to, as I’ve maintained in arguing that Trump lacks the authority to build a border wall when Congress has implicitly told him he can’t spend any money on it. But the president does have certain inherent constitutional powers. Relevant here are the president’s power as commander in chief to conduct military operations and his power over U.S. foreign policy.”

As the number of troops on the ground in a given situation is “a classic tactical decision” that needs to be made by military commanders, of whom the president is the commander in chief, Feldman argues that Congress may lack the constitutional authority to mandate levels of troop deployments. Feldman and Samuel Issacharaoff made this case in 2007, when Democratic lawmakers were talking about legislating the end of the Iraq War. At the time, they argued that while “the Constitution gives Congress the power to declare wars, fund them, and oversee the way they are fought,” it doesn’t “allow Congress to micromanage the battlefield.” Consequently, Congress can’t tell the president “which hill needs to be taken — or where to put troops.”

Feldman also points out that by “purport[ing] to hold the president hostage not only to Congress but also to his own cabinet members, who would essentially have to certify their agreement with his judgment,” this bill would also constitute Congressional interference with the executive branch’s decisionmaking process. He says Congress shouldn’t be able to interfere with the executive branch in this way, as the Secretary of Defense works for the president on matters of military policy, and the Secretary of State does the same for foreign policy. Therefore, Feldman contends, it “makes no sense that the president would be blocked from making troop withdrawals unless his own appointees, including the director of national intelligence, say it’s all right. That inverts the structure of the executive branch.”

In lieu of this bill, Feldman argues that Congress should instead follow Mitch McConnell’s lead in using nonbinding resolutions to symbolically criticize Trump’s foreign policy. To do otherwise would, he argues, be tantamount to trying to do the president’s job for him. 

Writing for Lawfare, University of Virginia Law School professor Ashley Deeks notes that there are arguments to be made both in favor of and against this bill’s constitutionality. On the whole, Deeks says: 

“The line between constitutional and unconstitutional statutes regulating the president’s war powers is a notoriously contentious one.. On the one side are those…  who think that Congress constitutionally can engage in a wide range of legislation to regulate military activity and that the executive has, for large parts of U.S. history, complied with those laws. Scholars in this camp might conclude that there is little difference between imposing troop limits on the president and requiring him to keep a certain number of forces in the field, or between telling the president that he may not use troops for a certain purpose and that he must use troops for a certain purpose. In all of those cases, they would argue, Congress is ordering the president to undertake a military action that he opposes—but is not unduly infringing on the president’s tactical commander-in-chief power. On the other side are those who believe that the president has nearly preclusive commander-in-chief powers. Most modern presidential administrations have taken an assertive approach to war powers, claiming that the president possesses a broad set of exclusive powers. This began with the Truman administration in 1951, which argued that ‘since the direction of the armed forces is the basic characteristic of the office of the Commander in Chief, the Congress cannot constitutionally impose limitations on it.’ Modern administrations have staked out similarly aggressive claims to that authority, even though they sometimes have chosen not to test the statutory limits that Congress imposed. This school of thought might be particularly troubled by the tension that these types of statutes might create for U.S. troops, who are being forced to stay in the field—and possibly to continue to fight an armed conflict—when their leader, the president, does not support their mission. These two groups presumably come out differently on whether and to what extent Congress can limit the president’s ability to withdraw troops from overseas.”

This legislation has nine bipartisan cosponsors, including five Republicans and four Democrats. Deeks, the University of Virginia Law professor, believes that President Trump might veto this bill if it passed both chambers of Congress.


Of Note: In late 2018, President Trump claimed victory over ISIS and announced that the U.S. would begin a military withdrawal from Syria. This announcement led to a number of officials’ resignations, including then-Defense Secretary James Mattis. It was criticized for being hasty, ill-thought out, and giving ISIS an opportunity to regain ground after losses and ramp up the fight against U.S.-allied Kurdish fighters.

Deeks observes that Congress “has, with some frequency, imposed temporal limits on the deployment of troops” and “occasionally required the president to employ certain types of military actors in certain ways.” In those cases, Congress has been successful in imposing its will with regard to troops.

However, in two separate cases when Congress attempted to require the president to engage in specific defense activities, it had limited success. In 1949, it mandated that President Harry Truman create 58 Air Force groups (Truman had asked Congress to fund 48 groups; ultimately, when Truman signed the bill, he cited his commander-in-chief powers to order the Secretary of Defense to impound the extra funding for the additional 10 groups, therefore resisting Congress’ attempt to impose additional personnel and structures on him). More recently, Congress has required the president to maintain the detention facilities at Guantanamo Bay (these provisions first appeared in the 2012 National Defense Authorization Act and have carried over across the years into the current NDAA). Under the NDAA’s provisions, it’s “virtually impossible for the president to release certain individuals held at Guantanamo, even though the executive has concluded that they no longer pose a threat.” However, here, again, presidents have resisted congressional attempts to impose this limitation. Both the Obama and Trump administrations have deemed the limitation unconstitutional, at least in certain circumstances. 

In the closest recent parallel to this bill, the 2019 NDAA prohibits the Dept. of Defense from using funds to reduce the number of active-duty members of the U.S. armed forces in South Korea below 22,000. This provision can be waived if the Secretary of Defense certifies that the reduction is in the U.S. national security interests, won’t significantly undermine regional U.S. allies’ security, that U.S. allies have been consulted on the decision. In this case, the Trump administration included an objection to the signing statement. In its objection, the administration reiterated “the longstanding understanding of the executive branch that these types of provisions encompass only actions for which such advance certification or notification is feasible and consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs.”


Media:

Summary by Lorelei Yang

(Photo Credit: iStockphoto.com / Bumblee_Dee)