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Is Obama's Iran Resolution the Antidote to Kyl-Lieberman?

11/12/2007 03:14 pm ET | Updated May 25, 2011

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Barack Obama escalated his criticism of Hillary Clinton's foreign policy in a speech this weekend, blasting Democrats who try to "look tough" by "talking and acting and voting like George Bush Republicans." Asked about that line on Sunday's Meet the Press, Obama seized on Clinton's vote for the Kyle-Lieberman amendment, a hawkish, non-binding Senate statement on Iran policy, saying it sent the "wrong message" on the region.

Instead, Obama is advocating legislation stating that Congress did not grant President Bush the authority to attack Iran, either through the Kyl-Lieberman amendment or "any resolution previously adopted." Putting the brakes on Bush would be good for foreign policy, of course, but this is a dicey legislative strategy.

Obama's Iran resolution aims to check the executive branch in two strokes. First, it purports to define the boundaries of past congressional action. Second, it reiterates the constitutional fact that the president cannot start a war without congressional approval. The first goal is likely to backfire and the second is irrelevant.

In this political climate, Obama's resolution is unlikely to garner support from the majority of Congress. (It currently has no cosponsors.) Earlier this month, Jim Webb wrote a similarly well-intentioned letter telling Bush that he did not have authority to attack Iran. It only drew 29 other senators. Summoning a minority of the Senate to say what the majority thinks is not very effective. Such a letter is not binding, of course, and even some senators who agreed with its position declined to sign it. Yet antiwar legislators, activists and liberal donors are still pushing ahead for a legislative showdown on Iran, as Brian Beutler reported last week.

Activists should be careful what they wish for. A failed floor vote on Obama's resolution would not help avert a war. It might even give hawks more ammunition. Some would surely argue that a failure to pass the resolution reveals that a majority of Congress believes the president already has the power to attack Iran.

Democrats regularly criticize the administration's distortions of congressional action to expand the president's power. Unfortunately, that dynamic cuts both ways. The administration stretches legislative language in defense of outrageous practices -- and then presents Congress' failure to override the conduct as evidence of tacit approval. It is a maddening strategy. But pushing doomed legislation on war powers won't help.

Obama's resolution also states that any attack on Iran "must be explicitly authorized by Congress." This is irrelevant because Article I of the Constitution already gives Congress the exclusive power to declare war. The Constitution trumps laws passed by Congress. Constitutional rules are not strengthened if Congress reiterates them, just as they are not canceled if Congress opposes them.

Yet like many concerned citizens, Obama says that the Kyl-Lieberman amendment may have "opened the door to an attack on Iran." This analysis has become something of conventional wisdom among Democratic activists and liberal bloggers. But based on recent history, the administration is actually unlikely to cite a nonbinding statement on Iran policy as the legal basis for a new war. Instead, the administration could repeat its tactic of citing the congressional authorization of force after 9/11.

Prior to the Iraq War vote, for example, White House attorneys said Bush could invade Iraq without congressional approval, based on the 2001 authorization. In 2005, Condoleezza Rice de the same legal claim for attacking Syria. That may be why she was so dismissive of the Kyl-Lieberman amendment this weekend, telling ABC News that it had "nothing to do with" any potential attack on Iran. After all, Rice added, the president already has the "authority to use whatever means he needs to use in order to secure the country."

So what should antiwar legislators and candidates do?

I explore that question in the rest of this American Prospect column.