Was Bombing Iran Legal?
No. But it won't matter.
NBC News (“Some lawmakers in both parties question the legality of Trump’s Iran strikes“):
Several members of Congress in both parties Saturday questioned the legality of President Donald Trump’s move to launch military strikes on Iran.
While Republican leaders and many rank-and-file members stood by Trump’s decision to bomb Iran’s major nuclear enrichment facilities, at least two GOP lawmakers joined Democrats across the party spectrum in suggesting it was unconstitutional for him to bomb Iran without approval from Congress.
“While President Trump’s decision may prove just, it’s hard to conceive a rationale that’s Constitutional,” Rep. Warren Davidson, R-Ohio, who usually aligns with Trump, said on X. “I look forward to his remarks tonight.”
Rep. Thomas Massie, R-Ky., said in response to Trump’s social media post announcing the strikes: “This is not Constitutional.”
Massie introduced a bipartisan resolution this week seeking to block U.S. military action against Iran “unless explicitly authorized by a declaration of war or specific authorization for use of military force against Iran” passed by Congress.
In brief remarks from the White House on Saturday night, Trump defended the strikes but did not mention the basis of his legal authority to launch them without Congress’ having given him that power.
Sen. Bernie Sanders, I-Vt., reacted in real time during a speech in Tulsa, Oklahoma, slamming Trump’s actions as “grossly unconstitutional.”
“The only entity that can take this country to war is the U.S. Congress. The president does not have the right,” Sanders told the crowd, which broke out in “no more war!” chants.
Some Democrats called it an impeachable offense for the president to bomb Iran without approval from Congress.
Rep. Alexandria Ocasio-Cortez, D-N.Y., said Trump’s move is “absolutely and clearly grounds for impeachment.”
“The President’s disastrous decision to bomb Iran without authorization is a grave violation of the Constitution and Congressional War Powers,” she said on X. “He has impulsively risked launching a war that may ensnare us for generations.”
Rep. Sean Casten, D-Ill., said on social media: “This is not about the merits of Iran’s nuclear program. No president has the authority to bomb another country that does not pose an imminent threat to the US without the approval of Congress. This is an unambiguous impeachable offense.”
Casten called on House Speaker Mike Johnson, R-La., to “grow a spine” and protect the war powers reserved for Congress.
Johnson said Trump respects the Constitution as he sought to lay the groundwork to defend his decision to act unilaterally.
“The President fully respects the Article I power of Congress, and tonight’s necessary, limited, and targeted strike follows the history and tradition of similar military actions under presidents of both parties,” he said in a statement.
Johnson’s remarks, along with support for Trump’s move offered by Senate Majority Leader John Thune, R-S.D., indicate that Trump may have sufficient political cover to avoid blowback from the Republican-controlled Congress.
House Minority Leader Hakeem Jeffries, D-N.Y., said Trump “failed to seek congressional authorization for the use of military force and risks American entanglement in a potentially disastrous war in the Middle East.” But he stopped short of labeling the military action illegal or unconstitutional.
House Minority Whip Katherine Clark, D-Mass., was more direct on the legal question.
“The power to declare war resides solely with Congress. Donald Trump’s unilateral decision to attack Iran is unauthorized and unconstitutional,” said Clark, the No. 2 Democrat. “In doing so, the President has exposed our military and diplomatic personnel in the region to the risk of further escalation.”
Senate Minority Leader Chuck Schumer, D-N.Y., responded by endorsing a resolution by Sen. Tim Kaine, D-Va., to require congressional approval for Trump to take military action in Iran.
“No president should be allowed to unilaterally march this nation into something as consequential as war with erratic threats and no strategy,” Schumer said in a statement. “We must enforce the War Powers Act, and I’m urging Leader Thune to put it on the Senate floor immediately. I am voting for it and implore all Senators on both sides of the aisle to vote for it.”
The critics are surely right. But this genie has long since been out of the bottle.
There is simply no doubt that the Constitution places the power to declare war in the hands of Congress. The President, the Constitutional commander-in-chief of the armed forces, has the authority to direct the war once it’s authorized. And, it has always been understood that he also has the inherent authority to order the military to respond to armed attacks or similar emergencies.
The Cold War radically changed that balance of power.
For the first time in our history, we maintained a large standing military force during what was ostensibly peacetime. Historically, once a war was over, we reduced the Army to a cadre force that would be augmented by volunteers, conscripts, and state militias if Congress declared war. We did that after World War II, leading to initial disaster in Korea five years later, and have not really done that again since.* Thus, the President no longer has to petition Congress to raise an Army to employ military force.
Relatedly, while not formally at war, we were in a state of permanent tension with an adversary that possessed nuclear weapons. While the President would still need to go to Congress to fight a major war, such as in Korea and Vietnam, the deterrent logic of Mutually Assured Destruction only worked if the President could order massive retaliation against the Soviets within minutes.
Excesses during the Johnson and Nixon administrations ultimately led to the passage of the War Powers Resolution over Nixon’s veto in 1973. It acknowledges all of the above, but sought to limit the President’s power to use military force to situations when imminent danger precludes prior consultation with Congress. It has been observed mostly in the breach.
Given recent leaks that the US intelligence community assessed that Iran was still a long way from having a nuclear weapon, that threshold has not been reached. The President could and likely should have consulted with Congress.
Practically, though, there’s not much Congress can do about it. The Constitutional remedy for Presidents overstepping their authority and stepping on Congress’s prerogatives is impeachment. As we all know, the House has taken that step four times—twice in the first Trump administration. The Senate is now oh-for-four in removing an impeached President. In this instance, there would almost surely not be close to a majority in the House to impeach Trump, much less a supermajority to remove him from office.
While we’re at it, it’s worth noting that this attack was clearly illegal under international law as well. Article 2(4) of the UN Charter declares, “All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” War is permitted only in response to an armed attack against oneself or an ally, unless specifically authorized by the Security Council. Those conditions, rather obviously, have not been met.
As with the violation of the US Constitution and War Powers Resolution, the practical consequences will be nil. Great powers comply with international law when they will.
*We certainly expanded during major wars and significant reductions in force after. Indeed, I personally was forced into civilian life earlier than planned as a result of the post-Cold War drawdown. But we nonetheless maintained one of the largest standing forces on the planet—and almost certainly the most capable—even in those periods.
I guess I’m less fatalistic about the legal and Constitutional violations. Or, at least, I believe the duty remains, whether or not someone lives up to it. These are choices, not inevitabilities. These are bad habits, not instinctual barriers to behavior. Congress can assert its war powers or exercise the power of the purse today. A history of being drunk on irresponsibility is not an excuse for never sobering up.
@Kingdaddy:
The Roman Senate could have said, “No, young Octavian, we’re not going to just obey!” Look to Lindsey Graham to see our invertebrate future. Orwell was wrong, the future is not a boot stamping on a human face forever, it’s a tongue licking that boot forever.
Robert Kagan:
@Kingdaddy: Congress can try to assert its war powers…
No, with Speaker Johnson already explaining away Trump’s action last night, not even that is true for the moment.
ETA: The “perilous to American democracy” ship sailed last November when 51% of voters voted against the alternative to this.
Far less was said against Obama and Hillary in their clearly unconstitutional and violation of the War Powers Act weeks long assault on Libya. Nor did the UN raise a fuss. While the action had clear oil contract benefits for the UK and France “partners”. And Libya had given up their nuclear ambitions and had pulled back from funding terrorists and proxy armies.
The Iranian regime has committed poison gas attacks on girls’ schools, which fortunately only made the students very sick in their efforts to repress opposition.
Obama ———> Bin Ladin.
Obama ———>. Libya
Clinton ———->. Bosnia
Clinton ——->. Mogadishu.
Bombing the hell out a country is not a good thing. But it was necessary, Iran brought this on themselves.
@JKB: @Connor: Libya, Bosnia, and Kosovo were all pursuant to UN Security Council resolutions. But, yes, Obama exceeded his WPA allowance under vague pretense—for which I called him out at the time. Killing OBL was clearly authorized by the GWOT AUMF.
@James Joyner:
The Obama admin made the unusual claim that the WPA wasn’t applicable at all with Libya and argued they were not required to comply with it. That was why they called the conflict a “time limited, scope limited military operation” that did not qualify as “hostilities” and therefore the WPA didn’t apply.
IIRC every President has taken the position that the WPA is unconstitutional and no Congress has ever sought to try to enforce it with any of its authorities.
I don’t see this as legally any different than any other many other uses of unilateral warmaking by the Executive. This is probably most similar to El Dorado Canyon in the Reagan admin.
@Andy: I think the potential for escalation is higher here, but my perspective is four decades different. I was finishing out my sophomore year in college at the time. I wasn’t even trained to ask about congressional authorization at the time. But it was at least a direct response to the killing of Americans.
@James Joyner:
At this point, the escalation ball is in Iran’s court.
Hit enter too early.
Iran’s problem is that it is currently vulnerable to attacks from Israel and the US. Escalation is more dangerous for Iran. And many of Iran’s efforts would impact other countries, including attempting to close the straits, attack bases in the region, etc. There are a huge number of US aircraft at PSAB right now, for example. Would Iran risk sending a bunch of missiles in Saudi Arabia for example. Iran trying to close the strait would result in the US destroying its Navy and other elements of their coastal defense system. I don’t have much evidence of what Iran might do, but I don’t see Iran having any good escalation options
in the short term. I’d guess another missile attack on Al Assad in Iraq is probably the most likely.
Apologies for the bad formatting and grammar. I’m on my phone and don’t have an edit option on the mobile browser.
A law without effective teeth is hardly a law.
We don’t convict on impeachments, and the Roberts court has ruled that the President has immunity for all actions that can be vaguely classified as official — not that we have a history of prosecuting former Presidents for their actions.
(Prosecutions of Trump were for non-Presidential actions — campaign things, and knowingly hanging onto classified documents when he was a private citizen.)
So, legal schmegal.
Perhaps Hegseth has committed prosecutable crimes in following the orders he was given.
Opposition newspapers described the President as bent on dictatorship and his person in charge of the military a demonic warmonger. Are we talking
George W Bush and Donald Rumsfeld
Ronald Reagan and Casper Weinberger
Richard Nixon and Melvin Laird
?
No. FDR and Henry Stimson in the debate to extend selective service in 1941.
I’m presently reading volume two of Forrest Pogue’s biography of George Marshall
@Andy:
Somebody at a self-publishing forum once asked if they could write a book using their cell phone. My reply?
Only if they are a masochist.
Would Iran closing the straits of Hormuz be an act of masochism? A big hit on their economy certainly wouldn’t be pleasant for the citizens of that country.
All the Libya attack do was destabilized the country – a situation that still exists today with no end in site. I’m curious on whether Obama has any regrets.
@Raoul: Probably not. The march of Gaddafi’s army, led by his son, toward Benghazi was stopped, wherein he was publicly swearing to do a lot of killing. It wasn’t an op to stop the building of WMD. The Arab Spring had Libya in civil war and Gaddafi had a record for wanton slaughter. The threats were credible. A very different situation, I’d say.
@JKB:
Libyan operations had oil contract benefits for the UK?
lol
Gaddafi had, over many years, seriouly pissed off a lot of countries.
When he attempted to sustain his rule by mass killing, that bill came due
@Bill Jempty:
Or Churchill, Eden, etc in 1938.
“Warmongers” was an attack mounted by both some left (depending on times) and pro-government right in the UK in the 1930’s.
@Raoul:
Well, one can always maintain”stability” by enabling the rule of a tyrant.
That may also have its downsides.
A UN Security Council resolution does not alter the constitutional or WPA authorizations in the US. NATO overthrew Libya for oil contracts and the revitalization of sub-Saharan people slavery. And Obama/Hillary demonstrated to the world that giving up your nuclear weapons buys you nothing from the US. Ukraine learned that under Obama and Biden as well.
@JKB:
NATO did no such thing.
Criticism of the policies of previous US administrations is reasonable.
This is on a par with the silliness of the campist left.
Horseshoe? We haz it.
Gaddafi was trying to supress a revolt by massacre, and had also caused a lot of countries to have reason to see him ended.
Sometimes dancing the defiance dance ends up not to the advantage of the dancer.