Was Bombing Iran Legal, Redux

For all practical purposes, the Constitutional war powers have been stood on their head.

Law professors Geoffrey Corn, Claire Finkelstein, and Orde Kittrie take to the WaPo op-ed pages to explain “Why Trump didn’t have to ask Congress before striking Iran.”

The first several paragraphs, which are quite well written, rehash what we all know: Congress has sought to preserve its Article I right to decide when the country goes to war, while Presidents have long insisted that they have broad discretion as commander-in-chief to use force when they deem it in the national interest. Congress passed the War Powers Resolution over President Nixon’s veto, and Presidents and Offices of Legal Counsel ever since have treated it as an unconstitutional attempt to limit presidential prerogative. Furthermore, they argue, President Trump’s cause for ordering the Iran strike was for reasons as compelling, if not more so, than many other similar uses of force.

What interested me is the closing argument:

If Congress wanted to ensure that the U.S. would not proceed with the strike, it could have acted, and it has the legal authority to halt further engagement if it acts now. Yet, in practice, Congress has repeatedly tolerated presidential decisions to employ military force without congressional preapproval and has consistently supported such actions by appropriating funds to facilitate and sustain these military operations. Congress has not declared war since the Japanese attacked Pearl Harbor almost 85 years ago, and it has only issued a handful of authorizations for the use of military force since then.

Meanwhile, federal courts have frequently rejected as inappropriate for judicial review lawsuits filed by members of Congress challenging presidential authority to use military force unilaterally, even in cases involving apparent violations of the WPR. And the Supreme Court has never ruled on a case involving unilateral presidential military action overseas. With courts repeatedly refusing to enforce the WPR, it is increasingly difficult to maintain that the limits set by that statute meaningfully constrain presidential action.

Over the past week, several lawmakers have introduced bills to limit presidential authority to use force against Iran. But unless and until Congress is successful in passing a law to restrict the president, he is justified in invoking authority just as his predecessors did.

Congress can limit his war power, but to do so it must act, not simply complain after the fact.

As I noted on Corn’s post on a private Facebook group pointing to the op-ed, I think this is correct practically, but absurd constitutionally and legally. It stands the Constitution on its head, giving the president the power to go to war unless Congress passes a law—subject to presidential veto!—in advance, denying it in that specific instance. Essentially, then, the power to go to war is now the president’s, unless there’s a 2/3 majority in Congress willing to stop him. Further, if they pass such a law, he can just do it anyway. Congress’ only recourse would be impeachment, and no Senate will remove a president.

This is not unique to this President and this specific mission. I concur with the authors here:

The important national interests served by the attacks on Iran’s nuclear weapons facilities have been further delineated in explanations by Presidents George W. Bush, Barack Obama, Joe Biden and Trump of their commitment to use force if necessary to prevent Iran from acquiring a nuclear weapon. Over the past 20 years, Congress has never acted to prohibit or restrict military action. To the contrary, on Nov. 1, 2023, the House of Representatives passed a resolution — by an overwhelming bipartisan vote of 354 to 53 — declaring that “it is the policy of the United States … to use all means necessary to prevent Iran from obtaining a nuclear weapon.”

While I have some concerns about the mercurial and unorthodox manner of the decision-making process leading up to the Go order, I don’t have a strong opinion on whether it was wise. I simply don’t know what the Intelligence Community, Central Command, and others were advising. But it’s undeniable that it has been a longstanding, bipartisan policy of the United States that Iran’s getting nuclear weapons was unacceptable.

I just believe Congress should have a say before a President commits a brazen act of war that could make widespread conflict a fait accompli. That he apparently got away with it doesn’t change that fact.

FILED UNDER: Congress, Law and the Courts, Middle East, Military Affairs, National Security, Supreme Court, The Presidency, US Constitution, US Politics, World Politics, , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Professor of Security Studies. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kingdaddy says:

    You’re right, this is a completely perverse inversion of the Constitution.

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  2. Kingdaddy says:

    Also, what happened to Bezos’ policy that the Washington Post’s editorial page would only print articles about free enterprise and personal liberties?

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  3. Sleeping Dog says:

    Congress long ago abdicated its constitutional responsibilities and past presidents have given congress a figleaf to hide behind by not riding roughshod over congressional prerogatives. That has changed with the felon.

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  4. Kathy says:

    Pretty much no president, or El Taco, has gone to Congress for military operations unless they need massive amounts of money.

    The constitution is outdated. The US doesn’t have a small standing army, as was noted right here the other day, that can or needs to be filled up with volunteers and conscripts in time of war. It’s a huge set of armed forces and associated equipment and munitions, with an effing big budget.

    If you want Congress to be in control of when war happens, then give it control of the military. You can’t fund a massive war machine, appoint someone else commander in chief, and keep control of it.

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  5. Charley in Cleveland says:

    Trump has used/borrowed Nike’s motto to great effect: Just Do It. From tariffs to deportation (renditions) to bombing Iran – all done illegally or unconstitutionally – Trump just does it, and by the time Congress wakes up or the courts can respond, what he wanted to accomplish has been achieved. “Move on folks. Nothing to see here.”

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  6. James Joyner says:

    @Kingdaddy: I don’t think he’s in violation of the stated policy:

    We are going to be writing every day in support and defense of two pillars: personal liberties and free markets. We’ll cover other topics too of course, but viewpoints opposing those pillars will be left to be published by others.

    I don’t see this op-ed in opposition to either, although there’s certainly an argument to be made that letting Presidents take us to war violates personal liberties. But that ship sailed a long time ago.

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  7. James Joyner says:

    @Sleeping Dog: Honestly, I’m not sure this was any more “riding roughshod” than pursuing the Viet Cong into Cambodia and Laos, the 1986 Libya bombings (El Dorado Canyon), the 1989 Panama invasion (Just Cause), the 1992 Somalia invasion (Restore Hope), or so many other interventions.

    @Kathy: Pretty much. Although Johnson did get an AUMF (the Gulf of Tonkin Resolution) for Vietnam, and Bush got one each for GWOT and Iraq. Obama had a UNSCR for Libya 2011, but claimed he didn’t need an AUMF. That’s definitely been the prevailing view.

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  8. You’re one of the first opinions I sought after this. You didn’t let me down, James. Thank you.

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  9. Chip Daniels says:

    More to the point, it ignores the entire purpose of giving the people (Congress) the decision as to whether their blood and treasure are to be spilled.

    Even if we accept the notion of some sort of exigent circumstances which demand immediate action like a Cold War scenario, almost none of the foreign entanglements since the Cuban Missile Crisis qualify.

    What these people are saying is that the executive can wave a hand and force your sons and daughters to war without the consent of the people.

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  10. JKB says:

    @Kingdaddy: You’re right, this is a completely perverse inversion of the Constitution.

    Perhaps but it goes back to President Thomas Jefferson when he made war on the Barbary States of North Africa. So it is an “inversion” that did not stir the authors of the Constitution to action.

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  11. gVOR10 says:

    I simply don’t know what the Intelligence Community, Central Command, and others were advising.

    Nor whether Trump did or would pay any attention to them.

    Re declaration of war. Has anyone done that since WWII? Is declaring war even a thing anymore?

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  12. James Joyner says:

    @gVOR10: We haven’t has an according to Hoyle “declaration of war” since. But we’ve had many AUMFs, which are the functional equivalent. All of our majorish wars (Korea, Vietnam, Gulf, Afghanistan, Iraq) were explicitly authorized by Congress.

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  13. just nutha says:

    They’re just reinforcing the conventional wisdom on Constitutionality/rule of law: when the action suits my desires, the Constitution/rule of law is secure. There’s less here than meets the eye.

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  14. steve says:

    I think one of the things that bothers me the most, is that just like the economic actions Trump is taking, this is all being done at the whim of one person. His “advisors” are a bunch of poorly qualified sycophants so we can discount the “advice” he gets. Power should just not be that centralized. Even if it were someone truly qualified to understand the issues and our military like Eisenhower I dont want one person solely making those kinds of large decisions.

    Steve

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  15. James Joyner says:

    @just nutha: I don’t think this is policy advocacy, just a description of the state of play. Presidents have expanded their power on this area, Congress has largely let them, and the courts rarely step in to settle any disputes that arise over military policy. It’s widely believed that the War Powers Resolution’s chief enforcement clause is a legislative veto of the sort SCOTUS ruled unconstitutional in 1983. I’m quite sure Finkelstein and pretty sure Corn think this is a bad idea, but they see it as the reality in which we live.

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  16. Connor says:

    I think its clearly unconstitutional in a literal interpretation. As an aside, Jonathon Turley has opined so, and argued (during Obama) so, in court. IMO you can take it to the bank.

    But its inoperative. J-walking is illegal, too. (And before I hear the howls of proportionality, its the principle that matters – enforce, or don’t enforce. We (we being Congress, courts and voters) made our decision long ago. Current progressive outrage is selective outrage.

    So its largely been a “tastes great/less filling” political food fight for a long time. As a practical matter, informing the leak machine, er, Congress, would be to put US lives in danger only to placate people who care about nothing other than their political skins. My decision would be – fuck you, sue me.

  17. Slugger says:

    As I have always said (not my original Idea), the law is the instrument the rich and powerful use to maintain their position and wealth. Any other ideas are slogans to make this fact palatable.

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  18. just nutha says:

    @James Joyner: I find no need to object that the Constitution/rule of law-ality of the situation is simply the condition of things rather than policy. I’m pretty sure that I’ve always positioned this opinion as simply the way people construct the reality they want.

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  19. just nutha says:

    @Connor: All outrage is selective. Even yours. (Maybe particularly yours. Who can tell?)

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