With the launch of the attacks on Iran, some have already declared the attacks unconstitutional. That includes the immediate conviction of Rep. Thomas Massie. However, precedent favors the president in this action, even though the attack carries with it obligations of notification and consultation with Congress.
I have great sympathy with those who criticize the failure to request declarations of war from Congress before conducting such operations. Indeed, I have represented members of Congress in their opposition to such wars. We have lost. The courts have allowed presidents to unilaterally order such attacks.
Article II, Section 2 of the Constitution states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” However, the Constitution also expressly states that Congress has the power to declare war under Article I, Section 8, Clause 11.
Our last declared war was World War II. Since that time, Congress and the courts have allowed resolutions to replace the declaration requirement. They have also enabled unilateral attacks on other countries.
President Trump has called this action a “war” and said it will not be a limited operation.
The attack will result in calls for compliance with the War Powers Resolution, which was passed by Congress in 1973.
The resolution requires that “absent a declaration of war” a president must report to Congress within 48 hours of the involvement of U.S. armed forces in hostilities. The WPR requires operations to end within 60 days without congressional approval.
Notably, there was recently a secret briefing from the “Gang of Eight” that may have foreshadowed this operation. Secretary of State Marco Rubio confirmed Saturday that he had informed those senators.
Under the WPR:
“The President shall, in all appropriate cases, consult with Congress before introducing the armed forces of the United States into hostilities or in situations where circumstances clearly indicate an imminent involvement in hostilities, and after each such introduction he shall consult regularly with Congress until the armed forces of the United States are no longer engaged in hostilities or have been removed from such situations.”
The WPR limits this authority to “hostilities, or to situations where a threatened involvement in hostilities is clearly indicated by the circumstances,” and can only be exercised “under (1) a declaration of war, (2) specific lawful authorization, or (3) a national emergency occasioned by an attack upon the United States, its territories or possessions, or its armed forces.”
President Trump has cited Iran and its allies’ documented attacks on U.S. forces and its allies. The country is also a state sponsor of terrorism and has continued to seek nuclear weapons, despite demands from the international community. Recently, the International Atomic Energy Agency (IAEA) announced that Iran has once again excluded the country from these sites.
There has historically been deference to presidents who exercised such judgments based on this vague standard. That was certainly the case with the attacks in Bosnia and Libya under Democratic presidents.
Even with this highly respectful language, presidents have long chafed at the WPR’s limitations. Nixon’s veto of the legislation was overridden. Past Democratic and Republican presidents, including Obama, have asserted their inherent authority under Article II to conduct such operations.
There is always a fair amount of hypocrisy in these moments. There was no widespread outrage when Obama attacked Libya, especially from Democrats. When I represented members to challenge the undeclared war in Libya, Obama (like Trump) dismissed any need to gain congressional approval to attack a foreign nation’s capital and military sites to force regime change. Figures like then-Secretary of State Hillary Clinton were praised for their tough actions in Libya.
Critics may also rely on Authorizations for the Use of Military Force (AUMFs) to place limits on the president in authorizing limited, defined military actions. Such resolutions date back to the Adams administration’s quasi-war with France.
A 2001 AUMF authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or assisted the terrorist attacks of September 11, 2001.” It also authorized presidents to take military action to prevent future acts of terror against the United States.
The 2002 AUMF authorizes the president to use “necessary and appropriate” force to “defend the national security of the United States from the continued threat posed by Iraq.” Past presidents have interpreted these AUMFs to extend to new threats and go beyond countries like Iraq.
In a 2018 report, the Trump administration stated that the 2002 AUMF “does not contain a geographic limitation on where authorized force may be used.”
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Obama, Biden and Trump have cited the 2002 AUMF in support of previous strikes in Syria. The Biden attacks include targets in Iraq and Yemen. Trump also cited the 2002 AUMF in taking out Iranian General Qassem Soleimani, leader of the Islamic Revolutionary Guard Corps (IRGC) Quds Force.
President Biden’s reliance on the 2002 AUMF (and the 2001 AUMF) for “necessary and proportionate” attacks was ironic, given that he previously supported the repeal of the 2002 AUMF.
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The administration will likely consult with Congress in light of these attacks. Congress may try to ban or restrict operations in the coming days. Given the changing events, many members will likely wait to see the initial results and, frankly, the polls on the attacks. However, these operations can take days or even weeks. The longer the operation continues, calls for congressional action are likely to increase.
Initially, however, Trump is using the authority that previous presidents, including Democratic presidents, have cited in launching major attacks on other countries. History and previous precedents are on his side in carrying out these first attacks.
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