The joint resolution approved by the House and Senate yesterday authorizing President Bush to begin military action against Iraq will have the force of law after it is signed by the president.
Had the House passed a competing resolution sponsored by Majority Leader Richard A. Gephardt (D-Mo.), urging that international sanctions against Iraq be given more time to work, many scholars believe that would not have been binding on the president. The Gephardt measure was a concurrent, or non-binding, resolution, which is not submitted to the president for his signature.
Congress frequently uses such sense-of-the-Congress resolutions to express its position on sensitive matters without having to contend with a presidential veto, which requires a two-thirds majority to override. For example, the House yesterday also passed a concurrent resolution reaffirming the power of Congress to declare war before military action is used in the Persian Gulf.
If Bush ignores that resolution and the matter winds up in court, it is not clear whether the measure would be upheld as binding on the president. House counsel Steven R. Ross insisted that Congress's war-making authority is so clear under the Constitution that a non-binding resolution is sufficient as "a clear signal" of congressional intent. "You don't have to go through the full legislative process," he said.
But Washington attorney Gary Born said that a non-binding resolution has no "legal validity. It is not important for constitutional purposes. It may be quite important for political purposes."
This distinction was not an issue in the Senate, where the defeated Democratic anti-war measure was a joint resolution that would have required Bush's signature had it passed.
The Bush White House, like previous administrations, has maintained that the president has inherent power as commander in chief to use military force. But the White House decided to seek a congressional resolution as a matter of political accommodation.
Courts turned aside 70 legal attempts to halt the undeclared Vietnam War, which President Lyndon B. Johnson escalated after signing into law the 1964 Tonkin Gulf resolution.