16 May

The Iran War is Unconstitutional

“Neither Congress nor the Supreme Court will do anything about it.” – The Lonely Realist

Article I, Section 8, Clause 11 of the Constitution grants Congress the exclusive power to declare war.

Article II, Section 2 of the Constitution names the President as the “Commander in Chief of the Army and Navy of the United States,” the effect of which is that while Congress can declare war, it cannot itself pursue a war. Only the President can execute on a Congressional declaration of war.

The Constitutional separation of powers among America’s three branches of government is intended to provide checks and balances on overreaching by any one branch. So, for example, the Founding Fathers intended that neither the President nor Congress should have the power to take unilateral military action. [ED NOTE: In Federalist No. 26, Alexander Hamilton explained that war should be debated in Congress so that if those in power were “disposed to exceed the proper limits, the community will be warned of the danger and will have an opportunity of taking measures to guard against it.”] President Trump believes otherwise and, as a consequence, he has unilaterally pursued the Iran War. That is unConstitutional.

The Constitution does not, for example, define what “war” means. It leaves such more difficult questions to the Supreme Court. The Founding Fathers nevertheless created a clear division between the authority to declare war and the power to conduct war. It also added to Congressional checks on Executive overreach by giving Congress the power of the purse, enabling it to cut off funding for military actions that it disagrees with. President Trump does not believe in checks on his authority. He asserts that the Constitution vests imperial authority in the Presidency and that he therefore has the power to use monies specifically budgeted for one thing for anything, including to fund a war.

The absence of a Constitutional definition of “war” led Congress in 1973 to pass the War Powers Act. Under the Act, Congress granted the President authority to respond to “imminent” threats without seeking Congressional approval. His only constraint is that the threat must be “imminent” and he notify Congress of America’s military response within 48 hours. The President thereafter would have 60 days to either withdraw U.S. military forces from their engagement or seek Congressional approval authorizing continued military action.

President Trump launched the Iran War on February 28, asserting that America faced an “imminent” nuclear threat from Iran [ED NOTE: This even though America’s intelligence services had advised him that Iran had neither a nuclear weapon, the capacity to deliver a nuclear weapon to American shores, or the imminent capacity to build a nuclear weapon], and complied with the War Powers Act by notifying Congress on March 2. He and Secretary of War Pete Hegseth thereafter notified Congressional leaders that the War had “ended” on April 7 upon a Presidential declaration of a temporary ceasefire, the President adding that American military forces would remain in place “to address Iranian and Iranian proxy forces’ threats…,” with military skirmishes nevertheless continuing (those on May 4 being the most notable). The President has repeatedly warned that he will decimate Iran unless it agrees to his demands. The reality, therefore, is that the ceasefire did not end the War.

Although superficially relying on the ceasefire to support the position that he has complied with the War Powers Act, on May 1 President Trump told reporters that “[e]very other president considered [the War Powers Act] totally unconstitutional,” and added that the War Powers Act infringes on the imperial powers of the Presidency (an argument that goes beyond the “unitary executive theory” he has espoused to expand Presidential powers in other contexts). The historical record is otherwise and, although there are arguments supporting the President’s position with respect to the War Powers Act, experts are divided on the question and no court has addressed it.

The War Powers Act was an effort by Congress to clarify the Constitutional declaration-of-war process (following America’s Vietnam War imbroglio). Because the Act provides the President with a grace period to carry out military operations before Congress exercises its Constitutional declaration-of-war powers, that is precisely the course the President followed from February 28 to May 1…, after which he didn’t. As President Trump told an audience on May 2: “You know we’re in a war, because … we cannot let lunatics have a nuclear weapon.” Without Congress issuing a declaration of war, the President: (1) determined pursuant to the War Powers Act that Iran’s nuclear ambitions presented an “imminent” threat to America which delegated to him the Congressional authority to take immediate military action against Iran; (2) determined that by declaring a ceasefire, America ceased to be “at war”; (3) now asserts that his prior compliance with the War Powers Act was in error since the Act is unConstitutional; and (4) asserted that Article I, Section 8, Clause 11 of the Constitution cannot restrict him from pursuing further military action against Iran because doing so would be an infringement on imperial Presidential power.

Secretary of State Marco Rubio has echoed the President on each point, including by repeating that the unConstitutionality of the War Powers Act has been the opinion of “every single president [since 1973].” To the contrary, no post-1973 President labeled or treated the Act as unConstitutional. The assertion also ignores the differences between the Iran War and every other miliary action previously taken by a President. No other President launched a surprise attack on another sovereign nation. No other President committed America’s full military resources to “regime change” without Congressional approval. No other President unilaterally targeted the execution of another country’s leaders. No other President launched a miliary action without having received affirmation from America’s intelligence services that a threat to America was “imminent.” And no other President launched a war that escalated into a regional conflict with worldwide economic consequences (one in which American and allied interests have been significantly damaged). Examples of contrasting post-1973 Presidential actions include: In 1993, President Clinton ordered U.S. military forces to take limited military action in Bosnia to fulfill America’s obligations under the NATO treaty; in 2001, President Bush received Congressional “Authorization for Use of Military Force” to wage war in Afghanistan; in 2011, President Obama authorized narrow U.S. military operations in Libya; in 2013, President Obama asked Congress to authorize intervention in the Syrian civil war and, when Congress declined to act, took no action; in 2018, President Trump ordered limited airstrikes in Syria and, in 2020, an airstrike-assassination in Iraq; and in 2021, President Biden took military action against terrorist groups in Iraq, Syria, and Yemen. Each of these and other post-1973 military actions (including those taken by President Reagan) were limited in time and scope, were directed against a specified threat with a narrow goal, and fell within actions permitted under the War Powers Act. The Iran War goes far further. And, since the War is continuing, the Constitution requires Congressional validation…, which the President refuses to seek (and Congress refuses to provide).

What would the Supreme Court do were it presented with the Constitutionality of the ongoing conduct of the Iran War (e.g., by a member of Congress having “standing”)? It could rule that the President’s actions are Constitutional, a decision that would endorse an imperial Presidency (and allow succeeding Presidents to engage in a broad range of actions without checks or balances). OR it could decide that the President’s actions were unConstitutional and order the President to pull back America’s armed forces…, a ruling that would precipitate a Constitutional crisis. OR it could schedule the case for oral argument in 3 or 6 or X months. The practical conclusion flows from what President Andrew Jackson purportedly said regarding the Supreme Court’s 1832 decision in Worcester v. Georgia, “John Marshall has made his decision; now let him enforce it!”

Finally (from a good friend)