Trump's Iran Air Strikes and the Constitution

Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump’s illegal actions has beneficial consequences.

Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump’s air strikes violate the Constitution:

My longstanding view, developed in a series of articles, is that the Constitution’s original meaning requires Congress to approve any material initiation of military hostilities by the United States.  As explained at length in Textualism and War Powers, that conclusion rests principally on two points:

(1) the original meaning of “declare” war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war.  In the eighteenth-century sense, war could be “declared” by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action — a point noted by Hamilton in The Federalist).

As a result, the Constitution’s assignment to Congress of the power to “declare” war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force.  A wide range of leading members of the founding generation — including Washington, Hamilton, Madison, and James Wilson — described Congress’ power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).

(2) the original meaning of “war” broadly included most uses of sovereign military force, including ones with limited scope and objectives.  An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war — both of which came within Congress’ war power.  The Bas case involved the so-called “Quasi-War” between the U.S. and France in the late 1790s, which consisted only of naval engagements.  Notably, essentially everyone at the time — including advocates of presidential power such as Hamilton and President John Adams — thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).

Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval.  The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome.  Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war).  And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress’ approval under the Constitution’s declare war clause.

As Ramsey notes, there is an argument that relatively small-scale military actions don’t qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn’t apply here. The objective of these strikes – dismantling Iran’s nuclear program, and the potential scale of the fighting (Iran is a major regional power and has substantial retaliatory capabilities) differentiates this situation from very narrow one-off strikes, such as Ronald Reagan’s 1986 air strike against Libya.

Ramsey also has a compelling response to the argument that this action is legally justified by Iran’s earlier support of terrorist attacks.

Unlike many of Trump’s egregious abuses of emergency powers, this action is far from unprecedented. Previous presidents have also violated the Constitution in this way. Most notably, as Ramsey points out, Barack Obama, in 2011, waged a lengthy air campaign against Libya, intended to help overthrow that country’s dictator, Moammar Gaddafi. For those keeping score, I condemned Obama’s action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Obama’s illegal actions don’t justify Trump’s (and vice versa).

Ramsey’s analysis is based on originalism. He suggests there might be a “living constitution” case for justifying such actions, based on “the speed of modern warfare and the exigencies of terrorism and potential nuclear attack.” I disagree. Modern warfare is indeed faster than that of the eighteenth century. But Congress can move faster, too. Under modern conditions, Congress can be swiftly convened even if it is not in session (which, today, it almost always is). In this instance, Trump had ample opportunity to seek congressional authorization. He just chose not to.

In addition to violating the Constitution, the air strikes also violate the War Powers Act. Section 3 of that legislation requires that “[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” There was no such advance consultation here, even though it was obviously “possible” to do it (US strikes against Iran have been under consideration since Israel began its air campaign on June 13, if not before).

The War Powers Act also requires withdrawal of US forces from “hostilities” after 90 days, unless Congress has authorized further involvement. Obama ultimately violated this requirement in the Libya conflict; we’ll see if Trump ends up doing so here.

Legal scholars and commentators have to be open to the possibility that an illegal action might nonetheless have beneficial results. Like Michael Ramsey, I acknowledge that could be the case here.

If the US air strikes (combined with earlier and ongoing Israeli actions) really do severely damage Iran’s nuclear program, that would be a good thing. If they succeed in overthrowing Iran’s brutal regime, that would be better still. Since coming to power in 1979, Iran’s theocratic dictatorship has sponsored numerous terrorist attacks (including some against the US), supported brutal terrorist groups around the Middle East (including Hamas, Hezbollah, and the Houthis), and brutally oppressed its own people, including by repressing women and minority ethnic and religious groups. Almost any plausible alternative government would be better. There is no contradiction between recognizing all of that, while also condemning Trump’s many abuses of power and authoritarian tendencies.

I left the field of security studies many years ago, and therefore must be cognizant of the limits of my expertise. Thus, I will not try to give any definitive assessment of the policy merits of this campaign. I will limit myself to just a few tentative points.

First, war is inherently dynamic. What the great German military theorist Carl von Clausewitz called “friction” is ubiquitous, making prediction difficult. As he also put it, in On War, “everything in war is very simple, but the simplest thing is difficult.” Much depends on how Iran reacts to these strikes, and how the US and Israel respond in turn.

Second, I have little faith in this administration’s ability to conduct any prolonged conflict competently. Among other things, Pete Hegseth is not a competent secretary of defense, and Tulsi Gabbard is not a competent head of the intelligence community. Trump himself is notorious for his ignorance and poor judgment. That doesn’t guarantee a bad outcome. But it certainly reduces the odds of success.

Finally, even if the military action here turns out to be successful, waging another war without proper congressional authorization is still a dangerous precedent. There is good reason for that constitutional requirement, and we eroded it at our peril. See my 2021 Washington Post article on this subject, for some of the reasons why:

If such a consensus is absent, it is usually best to avoid the conflict entirely. The failure of Obama’s 2011 military intervention in Libya, — he called the lack of planning for the aftermath of that conflict his “worst mistake” as president — was partly caused by his decision to forgo building the necessary political consensus for congressional authorization.

Although U.S. airstrikes against Libya lasted for some seven months, and helped bring about the overthrow of the regime of Libyan dictator Moammar Gaddafi, the Obama administration claimed there was no need for congressional authorization for its actions, on the dubious ground that it did not involve a genuine war, or even “armed hostilities” under the War Powers Act. Subsequently, the country descended into chaos and ISIS-aligned groups and other dangerous organizations took over substantial parts of its territory; the United States largely walked away.

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