Aff - Saudi Courts - BFHR.docx - AFF \u2013 SAUDI COURTS 1 \u2013 BFHR 2019 1AC 1AC WAR POWERS ADV Trump vetoed a Congressional resolution to terminate arms

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Unformatted text preview: AFF – SAUDI COURTS 1 – BFHR 2019 1AC 1AC WAR POWERS ADV Trump vetoed a Congressional resolution to terminate arms sales to Saudi Arabia --- Courts can rein in executive war powers by ruling that veto was an unconstitutional abrogation of the WPR Ilya Somin 19, 6-10-2019, professor of law at George Mason University, "Legal Scholars' Letter on Initiating a Congressional Lawsuit to End Illegal US Role in the Yemen War," Reason, A cross-ideological group of constitutional and national security law scholars recently submitted a letter to Speaker of the House Nancy Pelosi urging her and the House of Representatives to initiate a lawsuit to halt the illegal US role supporting Saudi Arabia and its allies in the war in Yemen. The letter was drafted by Yale Law School Professor Bruce Ackerman, with assistance from the other participants. Signatories include Ackerman, Richard Albert (University of Texas), Rosa Brooks (Georgetown), Erwin Chemerinsky (dean of the law school at UC Berkeley), Mary Dudziak (Emory), Michael Glennon (Tufts), Jon Michaels (UCLA), Mary Ellen O'Connell (Notre Dame), Michael Ramsey (Univ. of San Diego, and one of the authors of the Originalism Blog), Aziz Rana (Cornell), Scott Shapiro (Yale), Ruti Teitel (New York Law School), and myself, among others (institutional affiliations listed for identification purposes only). Here In vetoing Congress' joint resolution on Yemen, President Trump has defied fundamental principles of constitutional law laid down by the Supreme Court 's landmark decision in the [1953] Steel Seizure Case . The Court's decision involved a genuine emergency. A steelworkers' strike had halted production, and this led to a dramatic reduction of crucial war materiel required by American troops fighting in Korea. Faced with a clear and present danger to the war effort, President Truman seized the steel mills in his capacity as Commander-in-Chief and ordered the workers back to work. In taking this step, Truman refused to follow specific provisions of the is an excerpt: Taft-Hartley Act that Congress had laid out to deal with strikes in national emergencies. He instead declared that, as Commander-in-Chief, he had the The Supreme Court rejected Truman's assertion of unilateral power as unconstitutional in the Steel Seizure Case… We call upon you, as Speaker of the House, to initiate a law-suit which calls upon the judiciary to vindicate Steel Seizure in the case of President Trump's military support of the Saudi war against Yemen. President Trump raises the very same constitutional question decided by Youngstown – only this time, it is the War Powers Resolution , not the TaftHartley Act, which explicitly prohibits the president from using his power as commander-in-chief to engage in unilateral war-making . President Trump's decision to support the war in Yemen represents a clear violation of the [1973] War Power Resolution's reaffirmation of the Founder's grant to Congress over the ultimate question of war and peace. Section 8(a)(c) not only grants Congress power to forbid American troops from engaging in "hostilities" involving direct acts of violence. It explicitly defines "hostilities" very broadly to enable the House and Senate to prohibit American armed forces from engaging in actions which "coordinate" or "accompany" the "regular or irregular military forces of any foreign country ." Congress was acting well within its constitutional authority in insisting on this broad definition of "hostilities." Given the ease with which power to act independently of the law laid down by Congress. military "coordination" with foreign powers can escalate into full-blown war under modern conditions, the Constitution's "necessary and proper" clause gave Congress ample authority to include these indirect forms of military support in order to preserve its ultimate authority "to declare war." I offered some additional analysis of the illegality of US intervention in the Yemen War here (in a post that reflects solely my own views, and not necessarily those rump vetoed a congressional resolution that would have terminated US military aid to Saudi Arabia and its allies in the Yemen conflict…. But Trump's veto of the resolution is not enough to make the US role in this conflict legal . It is still in violation of the 1973 War Powers Resolution… That legislation forbids the "introduction" of US forces into "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," for a period of more than 90 days without congressional authorization… . Significantly, of other signers of the letter): [In April], President Donald T the WPR defines "introduction" into hostilities to include "the assignment of member[s] of [the US] armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities." While US forces are not directly engaged in combat in Yemen, the Trump Administration itself admits that they have provided intelligence, logistical support, and—at times—even in-flight refueling of Saudi aircraft . As Utah Republican Sen. Mike Lee…, puts it, "We're literally telling the Saudis what to bomb, what to hit, and what and who to take out." That pretty clearly amounts to US involvement in the command, coordination, and "movement" of Saudi forces— exactly the sort of thing that the WPR forbids , absent congressional authorization. US involvement in the Yemen War dates back to the Obama administration, and has long since passed the 90 day WPR deadline. Congress has never voted to authorize that There is widespread bipartisan concern in Congress about the illegality of this conflict and the very dangerous precedent it sets. That is why the Yemen resolution passed in the first place, with support ranging from conservatives such as Senator Lee, to involvement. Thus, it is illegal. libertarians like Justin Amash, and virtually all Democrats. Rep. Ro Khanna, Vice-Chair of the House Progressive Caucus likewise supported the Yemen widespread concern cannot stop the intervention by traditional legislative means alone , because the president can veto any congressional resolution he opposes, and the veto can only be overriden by an overwhelming two-thirds majority in both houses of Congress . By circumventing the War Powers Act Trump (like Obama before him) has shifted authority away from Congress to himself, ensuring that the default position is that he can continue the intervention, rather than that he must stop it unless Congress gives its affirmative consent. That makes a hash of the Founding Fathers' scheme to ensure that the president cannot enter into new international conflicts without getting advance congressional approval . A lawsuit could help redress this imbalance by enabling Congress to stop the illegal legislation without having to through a process in which the president can use the veto to shield his power grab . Even though success is far from certain, it is a strategy that deserves to be tried. Some will likely condemn this strategy because the courts may dismiss such a lawsuit for lack of "standing." That could happen. But, in my view, Congress has a strong basis for standing in cases where the president has appropriated a core congressional power for himself. In order to get standing to sue, a plaintiff, must prove that it has 1) suffered an "injury in fact" that is "concrete" and "particularized," 2) resolution, and now has also endorsed the lawsuit plan. Unfortunately, that there is a causal link between the injury and the defendant's supposedly illegal conduct, and 3) that the injury can be redressed by a judicial ruling. Presidential circumvention of the War Powers Act inflicts a "concrete" and "particularized" injury on Congress by depriving it of its share of control over the deployment of US military forces—an extremely important national asset . In addition, there is no doubt there is a causal link between the president's actions and Congress' injury. And a court can redress the injury by ordering a halt to unauthorized US military assistance to the Saudis and their allies . Presidential usurpation of congressional war powers is not a new problem. Along with others, Bruce Ackerman and I spoke out against it during the Obama years. The time has come to consider new strategies for reining in the executive in order to ensure that no one person has the power to take the nation to war . As James Madison put it, "[i]n no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department…. [T]he trust and the temptation would be too great for any one man…" SCOTUS decision key --- otherwise Congress will never have the ability to enforce the War Powers Resolution Cristol 19 [Jonathan Cristol is a research fellow in the Levermore Global Scholars Program at Adelphi University and senior fellow at the Center for Civic Engagement at Bard College, “Trump's Yemen veto sets stage for potential Supreme Court confrontation,” April 17, 2019, ] On Tuesday, President Donald Trump vetoed a bipartisan congressional resolution that would have forced his administration to end military support for Saudi Arabia in the war in Yemen. This resolution was the first time that Congress has invoked the 1973 War Powers Resolution (often referred to as the "War Powers Act"), which limits the President's ability to commit US forces abroad without congressional approval. In addition to the significance of the veto itself, Trump's decision could lead to a Supreme Court ruling on the constitutionality of the W ar P owers R esolution, which would dramatically expand or limit the President's power to use military force abroad . The War Powers Resolution was passed in 1973 -- in response to what was seen as the unilateral commitment of the executive branch to long-term military engagements in Korea and Vietnam. The basic provisions of the resolution are easy to understand. The President must inform Congress within 48 hours any time "that United States Armed Forces are engaged in hostilities outside the territory of the United States." He has a free hand to act for 60 days, but if Congress does not authorize his actions in that window of time, then he has an additional 30 days to safely For over 40 years, Congress has not invoked its authority under the War Powers Resolution . Why? Because presidents have sought congressional withdraw the troops. authorization for their actions and informed Congress within 48 hours. In fact, presidents have done so more than 165 times since the resolution was passed. But there's another reason Congress has not invoked the resolution: concern that it might not be constitutional . Article 2, Section 2 of the United States Constitution states that, "The President shall be Commander in Chief of the Army and Navy of the United States." Congress is given the power to declare war, control military funding and "make Rules for the Government and Regulation of the land and naval Forces." Nowhere does it have the authority to deploy forces the W ar P owers R esolution could arguably be an unconstitutional limitation on executive power . But we don't know, because there has never been cause for a court decision -- until now. This resolution came abroad or to order their withdrawal. Thus, in the wake of the murder of Washington Post columnist Jamal Khashoggi on the order of Saudi crown prince Mohammed bin Salman (MBS denies any involvement). Khashoggi's murder brought renewed scrutiny not only of MBS, but also the humanitarian catastrophe in Yemen and the Trump administration's seemingly unquestioning support for Saudi Arabia -- in large part due to the strong relationship between Trump adviser Jared Kushner and the Saudi crown prince. Meanwhile, in Yemen, as of November 2018, Human Rights Watch reported more than 6,800 civilians had been killed. And the United States, in the words of the congressional resolution, played a role in those deaths -- providing "aerial refueling and targeting assistance" to the Saudis. Trump's veto statement called this resolution "an unnecessary, dangerous attempt to weaken my constitutional authorities." Assuming that there are no major defections in the vote, there are not enough votes to override the veto. But that doesn't mean Trump has necessarily won this battle. Congress has standing to take the President to court for violating the War a court decision could have significant ramifications for US foreign policy. Presumably, the case would reach the Supreme Court , and if the court decides that the law is unconstitutional, it would remove one of the very few checks on the President's ability to engage "in hostilities outside the territory of the United States." Congress does have some checks on the President's power in this Powers Resolution, and regard, but those checks are, in practice, limited. Congress has the power to declare war, but the United States has only fought five declared wars -- and none since World War II. And Congress controls the "purse strings," but while a few progressives and libertarians might jump at the chance to cut funding for the troops, most congressmen do not want to be accused of "failing to support our troops" by not authorizing military funding. If the court decides that the law is constitutional, then the outcome may be even more dramatic . The wars in Iraq and Afghanistan are explicitly authorized by Congress, but military actions abroad, from Somalia to Syria to Pakistan, have been justified by recent administrations as falling under the 2001 Authorization for the Use of Military Force (AUMF). This AUMF gives the President blanket authority to use force to both pursue Al Qaeda and to prevent Al Qaeda from engaging in "future acts of international terrorism against the United States," but it is open to broad interpretation. Given a clear ruling on the WPR's constitutionality, an assertive Congress could force the withdrawal of US forces from any country or conflict not explicitly authorized by the AUMF or any other piece of legislation. That solves broader Congressional arms sales oversight Juan Pachon 19, 06-20-19, Communications Director, Democratic Staff at U.S. Senate Foreign Relations Committee, U.S. Senate Documents, Menendez Speaks Ahead of Senate Passage of his 22 Resolutions Blocking Trump Admin's Arms Sales to Saudi Arabia and UAE. Congressional Documents and Publications. Retrieved from Menendez Speaks Ahead of Senate Passage of his 22 Resolutions Blocking Trump Admin's Arms Sales to Saudi Arabia and UAE WASHINGTON - Senator Bob Menendez (D-N.J.), Ranking Member of the Senate Foreign Relations Committee, delivered the following remarks on the Senate floor ahead of a series of votes on his 22 joint resolutions of disapproval to block the Trump Administration's unprecedented attempt to push through over $8 billion in arms sales to Saudi Arabia and UAE based on a false emergency and without Congressional consent . Following this speech, the Senate voted in support of blocking the sales. "Mr. President, I come to the floor again to urge my colleagues to stand up for the Congress as a co-equal branch of government and assert our institutional prerogative in the arms sales process. I want to thank my colleagues on both sides of the aisle who have joined with me in this effort to bring us here today And as we get ready to vote on these resolutions I want to again remind my colleagues what is at stake here. Yes, it is beyond disturbing that President Trump continues to cover for Saudi Arabia's transgressions, but at the end of the day these votes are not about any one President or any one arms sale. Let me remind my colleagues that there will be another president in the White House someday. There will be another president who will want to claim executive authorities to run over Congress, who will want to use emergency declarations to push through their agenda. We in this body must embrace our Article I responsibilities and ensure that we serve as effective check on that executive. Regarding these resolutions in particular, we must both assert our role in upholding the rule of law at home, and use our position to Congress has a major role in the arms sales process . Lest anyone forget, Article 1 of the Constitution vests the Congress - not the President - with the power to regulate commerce with foreign nations. And, it is the Congress that provided the president with the authority to sell arms while retaining strong oversight in the process. At the risk of getting in the weeds, I want ensure that when our government seeks to sell weapons, those sales advance our national security interests and our values. to briefly explain why Secretary Pompeo's twenty-two emergency certifications don't meet the basic requirements laid out by Congress in the Arms Pompeo provided us with one single "emergency" declaration for twenty-two separate arms sales when the law requires each come with its own individual justification. It's obvious why the Secretary flouted the statute: his bogus emergency doesn't pass Export Control Act. First of all, Secretary the laugh test in general. Furthermore, the Secretary is trying to justify these sales by relying on a section of the Arms Export Control Act - Article 36(c) - that arguably does NOT grant him the authority to do what he's trying to do! Congress made fairly clear back in 2000 that this provision only allows for the United States to make emergency arms sales in very limited situations--For example, to sell arms to NATO partners and other steadfast allies like This is a power grab , pure and simple, with lasting implications for the role of Congress in the sale of arms around the world. We cannot as an institution stand for it. Now, let me turn to these proposed sales. As a number of colleagues and I have already laid out, the Administration's argument that there is an "emergency" meriting pushing through eight billion dollars' worth of arms sales to Saudi Arabia and the United Arab Emirates simply does not pass muster. The weapons sales this Administration is trying to push through without Congressional review will not in any way equip the U nited S tates or our allies to better face of any 'imminent' threats from Iran. Assistant Secretary of State R. Clarke Cooper admitted as much multiple times last week before the House of Representatives." In one instance he noted that the Administration had been considering this 'emergency' determination for months. Months! In another, he conceded that a majority of these sales will not even be functional or come online for months or even years . Years! So let's take a moment to review why last year I decided to put a hold on one sale of 60,000 precision guided munition kits. Saudi Arabia, at the helm of its coalition, has used these weapons to devastating effects in Yemen . The two resolutions we'll consider individually relate to sales of precision guided munitions and parts. We've heard that these weapons are humanitarian weapons, but when they are used to precisely target civilians , how can we Israel, Australia, and Japan. continue to sell them? These are components of bombs that we know have killed thousands of civilians in Yemen. Patients in hospitals. Children on school buses. In fact, the Armed Conflict Location and Event Data Project, or ACLED, just this week released data showing that more than 90,000 people 12,000 people have died under the Saudi-led coalition More than 85,000 children have died from starvation in Yemen, an almost incomprehensible moral tragedy. Another nearly 14 million people remain at risk, especially as cholera have been killed in Yemen since 2015. And the list goes ...
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