Trump’s Iran War Matches the Founders’ Constitutional Vision

Almost immediately after President Donald Trump commenced airstrikes against the Islamic Republic of Iran, Americans began debating the legality of his decision. Some, such as Reps. Ro Khanna, a Democrat, and Thomas Massie, a Republican, utterly oppose the intervention and even insist it is unconstitutional. Others, such as New York Times columnist David French—and my Dispatch debate interlocutor Ilya Somin—take a more nuanced approach: Supporting action against the Iranian regime generally while worrying about both the prudence and legality of the present campaign. 

Caution is always merited in discussions of national security, and Operation Epic Fury is no exception. Arguments about war powers deserve to be taken seriously. But theories of war powers that subject the executive to rules mandating too much deference to Congress would hamstring future presidents faced with national security crises and undermine the Framers’ vision for an executive branch that is both limited and energetic. 

In the first place, we ought to acknowledge that an effective state of war has existed between the United States and the Islamic Republic of Iran for decades. The regime is responsible for countless attacks against American civilians and service members since it came to power in 1979. It has not only relentlessly pursued nuclear capabilities, but it also has built a massive missile and drone industry that threatens American interests in the Middle East and beyond–more than 57,000 Iranian drones have been used by the regime’s Russian partners on the battlefield in Ukraine alone. In other words, the Islamic Republic of Iran poses a self-evidently imminent and persistent threat. So did Trump have the constitutional authority to secure our interests against that threat through these strikes? 

One of the principal goals of the Constitutional Convention in 1787 was to supply the nation with a strong executive. The delegates in Philadelphia came to understand that necessity through hard experience. As French puts it, the Framers were intent on “disentangling the traditional powers of the monarch and placing them in different branches of government.” It is entirely correct that they were intensely skeptical of kingly power, which is why the Articles of Confederation, written in 1777 and ratified by all 13 states in 1781, established no office akin to the presidency we know today. The Confederation government was led not by an executive elected by the whole people but rather by a unicameral legislature composed of state delegations which voted en bloc, more like a diplomatic gathering of ambassadors than the federal system we have today. Most decisions required unanimity, and even then the Congress had no powers to enforce the few laws it passed. Early in the War for Independence, the shortcomings of this headless government became painfully clear. 

In The Continentalist, a series of essays from 1781 and ‘82 for which he first adopted the pseudonym “Publius,” Alexander Hamilton laid bare the problems with the Articles’ weakness. He began by admitting that the revolutionary government had perhaps been possessed by “an extreme jealousy of power” when designing the Articles. The central problem Hamilton detected was that concentrating all federal authority in a single legislative body meant that the government lacked the energy to pursue its proper ends. Congress could not, for example, collect the taxes it needed to fund the Continental Army. Especially during wartime, this weakness meant that crises could not be addressed with the proper alacrity.

The Framers’ solution to this problem was the creation of a unitary executive: the office of the president. In Federalist 70, Hamilton, again writing as Publius, famously asserted that “Energy in the executive is a leading character in the definition of good government” especially because it is conducive “to the protection of the community against foreign attacks.” 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. During the Convention, there was actually a debate on August 17 about whether Congress should possess the authority to “make war” or simply to “declare” it; the delegates decided on the latter precisely to allow the president greater latitude to, as James Madison and Elbridge Gerry put it on the Convention floor, “repel sudden attacks.” The Framers knew that the president would have to respond to emergencies, and they wanted to be sure the office possessed sufficiently broad power to secure the nation.

It would be an absurdity to suggest the commander-in-chief cannot act in certain circumstances without congressional approval. In his New York Times column, French writes, “Our nation cannot go to war until its leaders persuade a majority of Congress that war is in our national interest.” But Hamilton addressed the problems with this oversimplification in an 1801 essay critiquing Thomas Jefferson for advancing a similar constitutional doctrine. “It is impossible to conceive the idea, that one nation can be in full war with another, and this other not in the same state with respect to its adversary,” he wrote. “But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary.” Under this theory, the executive has broad prerogative to respond to threats from foreign powers. 

This Hamiltonian theory of executive prerogative is the best way to constitutionally justify Operation Epic Fury. As Andrew C. McCarthy has written recently for National Review, the president has authority to “use force if there is a true threat to vital American interests.” Seeking congressional approval may be politically prudent, but it is not strictly speaking necessary under the Constitution’s arrangement of war powers. It is a simple fact of our constitutional architecture that Article II provides a remarkably broad grant to executive prerogative. 

Of course, anti-Federalist critics of the Framers, and their Jeffersonian successors, actually argued in the 18^th century that this executive prerogative was far too kingly. In many ways, though, the Framers anticipated just this critique and designed the Constitution to balance this energetic executive with legislative oversight. The primary check Congress has, of course, is the power of the purse. In Federalist 58, Publius even writes it may be “regarded as the most complete and effectual weapon” against executive overreach. The president has immense authority to order military action even without a formal declaration of war, but Congress possesses in turn the ability to defund action if it disapproves. 

Despite this, Congress has tried passing laws, most notably the 1973 War Powers Resolution, to rein in executive prerogative and define its boundaries even more strictly than the Constitution. The law, promulgated in an atmosphere of post-Vietnam War disillusion, mandates that the president can only take military action abroad with the “statutory authorization” of Congress. But the constitutionality of this legislation has been immensely controversial since it was passed. Presidents reporting to Congress under the terms of the law have said they are doing so “consistent with” rather than “pursuant to” it, so as to not implicitly concede the constitutionality of it. Neither the executive nor legislative branch has ever brought a case regarding the War Powers Resolution before the Supreme Court. It is by no means a settled fact that the War Powers Resolution is constitutional.

Simply put, as the Founders conceived it, executive prerogative altogether defies legislation. They drew on an older, English conception to define the concept, which John Locke articulated in his Second Treatise on Government when he defined prerogative as the “power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” This tradition was common sense to the Framers who created the presidency. The actual process of lawmaking is too slow to address genuine emergencies, and therefore it is sometimes necessary for a branch of government to act with energy and dispatch for the sake of survival or the common good. In Article II, Section 1, the Framers therefore placed this power in the person of the president. Attempting to reassign it to the legislature, as the War Powers Resolution attempts, is to undo the careful separation of powers inherent to the Constitution. 

Even if naysayers are wrong about the strict legality of Operation Epic Fury, they are certainly right that the Trump administration needs to make a better case for it before the American people—and that Congress would be an appropriate forum to do that. The Trump administration has articulated several justifications and objectives for the strikes, but not yet in a clear and consistent way that will persuade the great body of the people. Early polling indicates that most American voters are skeptical of this intervention, if not in outright opposition. This bodes ill for the administration, especially if this war extends beyond the four-week timeline officials seem to have in mind.

Secrecy is one of the strengths of executive prerogative, as Publius wrote, but only up to a point. For generations now, the U.S. national security elite has become more and more isolated from the public it protects. That is how essential counterterrorism missions became “forever wars” in the popular imagination. The people who protect the public seem utterly incapable of explaining themselves to it. Yes, the threats we face are massively complex, but America deserves better than this lack of clear communication; she needs statesmen who can truly articulate our interests and principles and present a realistic strategy to protect them. 

This crisis especially demands an honest reckoning with the people. We must unfortunately admit that Trump himself is not likely to rise to the occasion, even if his Iran policy is strategically sound. Perhaps members of his Cabinet or their allies in Congress can do a better job, but even then there will be much confusion and disunity. The Constitution’s grant of prerogative to the executive is not self-justifying, and a failure to explain the use of it will no doubt weaken the power in the long run. 

All the same, we ought not mistake Congress for the constitutional protagonists of this struggle. As Yuval Levin has compellingly argued, “Congress is weak because its members want it to be.” The separation of powers is designed to safeguard liberty by making ambition counterbalance ambition—but the legislative branch has all but abandoned ambition altogether. Congress has massive leverage to use to force the president to bend to its will. But for decades now it has refused to deploy it in any circumstance, let alone when it comes to war powers. Its members prefer cultivating online influence and appearing on cable news to the difficult business of actually governing. The best way for Congress to limit executive power is not through resolutions, but concrete political action with real consequences. But it seems wholly unlikely that Congress would choose to exercise its constitutional authority this way, instead resorting to empty, partisan gestures.

We must trust the Founders’ wisdom. To divest the presidency of the national security prerogative they gave it would be profoundly misguided. We cannot know every particular, as Publius wrote in Federalist 23, and therefore cannot make rules to absolutely bind power in every circumstance. Partisan disagreements about the uses of legitimate presidential powers are best resolved at the ballot box—and they very well may be this fall in the midterm elections. What is at stake here is more than legal doctrines or even national security objectives. It is nothing less than the republican character of our country.