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.
