The large-scale U.S. military attack on Iran (undertaken in collaboration with Israel) is blatantly unconstitutional, even if its wisdom and morality are more debatable.
Article I of the Constitution gives Congress the exclusive power to declare war. One can debate the extent to which presidents can initiate relatively small-scale military actions, and such debates have raged for decades. But this attack is obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. President Donald Trump got no such authorization, nor did he even try.
You need not take my word for the proposition that this is a war. Take Trump’s own. He himself has called it a war, and proclaimed that the objective is regime change.
The closest historical analogue is Barack Obama’s 2011 air campaign against Libya, which was also an attempt at regime change carried out with air strikes. At the time, I condemned Obama’s action and repeatedly criticized him for violating the Constitution and the War Powers Act. Iran is a larger and more powerful nation than Libya.And unlike in the Libyan case (where dictator Muammar Qaddafi was opposed by an active rebel movement), the Iranian regime faces no significant internal armed opposition. Thus this is likely to be an even bigger conflict than the Libya intervention, and thereby an even bigger undermining of the constitutional separation of powers.
The Obama administration defended the legality of the Libya intervention based on the specious ground that it did not involve much in the way of sustained combat with hostile forces, because the intervention was limited to air strikes and Libya’s military had little or no ability to inflict damage on the U.S. This argument was wrong even in the Libya case. And it clearly doesn’t apply to the present war. Iranian retaliatory attacks have already killed six U.S. servicemembers, and wounded more, and further casualties seem likely.
The framers of the Constitution deliberately gave Congress exclusive control over the power to initiate 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.”
The whole point of giving Congress the power to declare war was to ensure the executive could not start a massive conflict on its own, as European monarchs routinely did.
Ilya Somin
Article II of the new U.S. Constitution granted the president, as commander-in-chief, broad prerogative over questions of national security precisely to correct the shortcomings of the Articles of Confederation.
Michael Lucchese
Alexander Hamilton—Madison’s great rival and the leading champion of broad executive power among the Founders—actually agreed with Madison on this point. Defending President George Washington’s 1793 proclamation of neutrality in the then-raging war between Britain and France, Hamilton wrote that “the Legislature have a right to make war” and therefore it follows that it is “the duty of the Executive to preserve Peace till war is declared.” Hamilton and Madison disagreed over whether the president had the power to issue a neutrality proclamation. But they were united on the proposition that no one man could take the nation to war, and that the executive must refrain from initiating such a conflict without congressional authorization. There are few important constitutional issues on which there was such broad agreement among the Founders.
This consensus undermines claims by modern advocates of untrammeled executive war powers that Congress’ authority to declare war was just a power to declare a technical legal state, leaving the president free to initiate large-scale hostilities at will. The whole point of giving Congress the power to declare war was to ensure the executive could not start a massive conflict on its own, as European monarchs routinely did. In Federalist 69, Hamilton rejected claims that the president’s authority as commander-in-chief of the armed forces granted him monarchical war powers, avowing that the president is “nothing more than … the first General and admiral of the Confederacy,” as opposed to monarchs like the “king of Great Britain,” whose power “extends to the DECLARING of war,” and thus the president’s war powers are “in substance much inferior” to those of a king. There would be no such inferiority relative to monarchs if the president could start a war at will.
This limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump’s failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
Many, particularly on social media, argue that Trump’s actions are authorized by the War Powers Act of 1973. But the WPA is a limitation on presidential power, not a grant of it. Enacted in the wake of real and imagined presidential abuses during the Vietnam War, it requires the president to secure congressional approval within 90 days of entering U.S. troops into “hostilities” or situations “where imminent involvement in hostilities is clearly indicated by the circumstances.” The purpose of this requirement is to constrain even small-scale combat deployments that might otherwise not require congressional authorization, because they fall short of being a war. Section 2(C) of the WPA makes clear that the statute does not expand presidential war initiation authority, emphasizing that “[t]he constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” None of these three preconditions exist in the current situation.
Some also argue that the requirement of a congressional declaration of war is a dead letter because Congress has not declared war since 1942. That claim is seriously misleading. Congress has authorized large-scale military action multiple times since World War II. The Vietnam War, the 1991 and 2003 wars with Iraq, and the post-9/11 War on Terror against al-Qaeda and the Taliban were all preceded by such congressional authorizations. They do not have to use the phrase “declaration of war” to be valid. It is enough that members of Congress and the public understood that the legislature was authorizing a large-scale military action.
Many other post-World War II military actions were either small enough to plausibly argue that they did not rise to the level of war, or arose because the enemy attacked first or declared war on the United States (as Panamanian dictator Manuel Noriega foolishly did in December 1989). When a war is started by the enemy, the president has the power to respond. In that event, he would not be initiating a war, but merely continuing one that has already begun. Iran’s sponsorship of terrorist groups—while egregious—does not rise to the level of initiating a full-scale war against the United States.
It is sometimes argued that the requirement of advance congressional authorization for war is counterproductive because it prevents the U.S. from taking the enemy by surprise. This ignores the fact that virtually every major military action undertaken by U.S. presidents in modern times was under discussion for a long time beforehand. In this case, Trump had been talking about attacking Iran for many weeks. Moreover, major attacks require a significant military buildup that likely cannot be hidden from a competent enemy—as was the case this time.
Thus, strategic surprise in initiating war is highly unlikely. However, advance congressional authorization does not preclude tactical surprise for specific operations. For example, the long buildup to the current war did not prevent the U.S. and Israel from surprising the Iranians enough to take out Supreme Leader Ali Khamenei and other top Iranian officials.
Claims that Congress cannot act fast enough to initiate war when necessary are also unpersuasive. Whatever was true in the Founding era, today Congress can gather for a vote within days (as happened after the 9/11 attack), or sometimes even hours. And, in practice, every significant modern military intervention has been publicly debated for much longer than it would take to gather Congress for a vote.
Harvard law professor Jack Goldsmith argues that law is now “irrelevant” to questions of war initiation because presidents have so often gotten away with starting conflicts without congressional authorization that “there are no effective legal limitations within the executive branch,” and courts are unwilling to intervene on issues like this. This claim is not entirely without validity. But it is an overstatement. As already noted, modern presidents do usually secure congressional authorization when they undertake to wage large-scale conflicts. Obama’s Libya intervention was a notable exception. The Korean War was, in some ways, an even bigger one. But President Harry Truman undoubtedly had broad congressional support (the main criticism of his conduct of the war was that of Republicans who claimed he did not go far enough). And the Truman administration at the time argued the war was sufficiently authorized by the United Nations Charter, and resolutions of the U.N. Security Council, as a “police action” in response to Soviet-sponsored North Korean aggression.
In any event, the fact that past presidents got away with violating the Constitution is no reason to let Trump get away with it, too. The reality that the law is sometimes violated does not render it irrelevant. Many people get away with murder as well, but that is no justification for accepting it. Rather, if the law in question is an important and justified one—and this one clearly is—it is all the more important to enforce it. The beginning of wisdom is to recognize this war is indeed illegal, so long as it lacks congressional authorization, and that we must work to prevent future such unconstitutional actions. The wisdom and morality of this action are more debatable than its legality. I am no reflexive opponent of military intervention, and regime change is sometimes justified. I have long differed on these issues with more dovish and isolationist libertarians.
The Iranian regime is a brutally oppressive dictatorship that recently slaughtered thousands of protesters, has a long history of promoting terrorism, and constantly seeks to develop nuclear weapons. For these and other reasons, regime change there would be welcome. But it is doubtful that regime change can be achieved with air and missile strikes alone. And, at this point, it does not seem like the U.S. and Israel have either the will or the capability of launching a major ground invasion, which—if mounted—might turn out to be too costly to be worth it.
Perhaps air power could achieve regime changes if coupled with a strong opposition movement within Iran. But Trump waited until after the regime crushed the protests that arose a few weeks ago, in the process slaughtering thousands. It may be difficult or impossible for a strong opposition movement to emerge again without a ground attack to bolster it and protect protesters from regime forces.
The killing of Khamenei and other high officials does not necessarily change this dynamic. According to reports, Khamenei’s son Mojtaba has apparently emerged as his successor, and the regime still controls a large army and other security forces, enough to crush internal opposition, so long as these troops remain loyal.
War is inherently dynamic, and it would be foolish to make definitive predictions. Thus, at this point, we can only say there is reason to doubt that this action will achieve the regime change Trump seeks, or any other beneficial result great enough to outweigh the damage done to our constitutional system.
Some material in this article is adapted from a post previously published at the Volokh Conspiracy blog, hosted by Reason.
