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Trump’s Bombing Iran and Its Nuclear Sites: The Continued Constitutional Fallout
The
lack of political resistance to Trump’s unilateral move against Iranian
targets underscores the weakness of the Constitution’s checks and
balances concerning war.
by Peter M. Shane
Last month’s U.S. armed forces attack
on Iranian nuclear sites ordered by President Donald Trump illustrates a
truth about the contemporary exercise of American military power
perfectly stated by Saikrishna Prakash,
the University of Virginia legal historian: “In no other realm have the
humbling of Congress and the aggrandizement of the presidency been as
comprehensive.” In domestic affairs, Democratic and Republican
presidents have differed markedly over the scope of unilateral power
vested directly by the Constitution in the nation’s chief executive. By
comparison, the obliteration of checks and balances in the deployment of
military force has been a decidedly bipartisan affair.
There
is no serious argument that the Constitution, as written, authorizes
presidents to launch an unprovoked military attack on another sovereign
nation without any plausible claim of prior legislative authorization.
As Prakash details in his 2020 book, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,
the executive branch’s current understanding of presidential war powers
represents a “sharp break with the Founding.” The Constitution provides
Congress with a panoply of authorities to control whether the nation
makes war and provides for a commander-in-chief who is subordinate to
Congress. Yet the Justice Department’s current position
is that presidents “may” need advance authorization—note the fudginess
here—only for “prolonged and substantial military engagements, typically
involving exposure of U.S. military personnel to significant risk over a
substantial period.” This falls only slightly short of the baseless argument by John Yoo,
the UC Berkley Law professor, that the Founders bequeathed presidents
with complete discretion over the deployment of military force, subject
only to Congress’s withholding funds.
How
we arrived at this constitutional moment is a complex story. It starts
with the proposition that our military power is subject to two legal systems,
one domestic and one international, each having different rules. That
is, there may be uses of force that are constitutional yet in violation
of international law, and there may be uses of force consistent with
international law that are not constitutional. Regarding international
law, Scott R. Anderson,
a former State Department lawyer, has recently explained: “Both
customary international law and the UN Charter generally prohibit ‘the
threat or use of force against the territorial integrity or political
independence of any state.’” There are exceptions for self-defense or
military force authorized by a United Nations Security Council
resolution. Of course, no such resolution authorized bombing Iran, and
there is no indication that the U.S. faced an imminent attack. The most
plausible international law argument is that the bombing was permissible
as part of the collective self-defense of Israel. Its viability would
then depend on whether Israel requested our assistance and whether its
own military actions against Iran amounted to lawful self-defense.
However,
the international law debate would not resolve the domestic law
question. As Prakash would insist—along with many scholars across the
political spectrum—a proper understanding of the Constitution would
require the executive to ground the legal justification for bombing Iran
in prior congressional authorization. It need not be a formal
declaration of war, which would have domestic and international legal
implications that Congress might not want to trigger. (Such
declarations, for example, permit seizing enemy property and
apprehending enemy aliens.) Congress may choose to authorize military
deployments through statutes. That is why, since 2001, both Republican
and Democratic administrations have relied with ever-strained
plausibility on the post-9/11 Authorization to Use Military Force
against al-Qaeda and allied persons as authority for military attacks
against terrorist groups that did not even exist in 2001. Yet Iran has
no ties to al-Qaeda, and there is no other statute authorizing last
week’s bombing. Under an originalist view of the Constitution, the
bombing’s illegality seems indisputable.
The
glitch is that throughout American history, and repeatedly since the
Korean War, Congress has acquiesced in unilateral presidential uses of
force. The Supreme Court, in separation of powers contexts, has relied
on such governmental practice—beyond or in addition to the
constitutional text—to determine what is permissible. Following this
approach, the Justice Department’s Office of Legal Counsel, in its 2011 advice
to President Barack Obama on bombing Libya, wrote that its
“understanding of the President’s constitutional authority reflects not
only the express assignment of powers and responsibilities to the
President and Congress in the Constitution, but also . . . the
‘historical gloss’ placed on the Constitution by two centuries of
practice.” In synthesizing the “historical gloss,” OLC found only two
constitutional limitations on the president’s authority to use military
force—at least where not actually forbidden by Congress. The first
possible exception, as noted earlier, is that absent an actual invasion
of the United States, history does not support the unilateral initiation
of “prolonged and substantial military engagements, typically involving
exposure of U.S. military personnel to significant risk over a
substantial period.” Beyond this, the only limit is whether the
president can reasonably determine that a deployment serves
“sufficiently important national interests…under his authority to
conduct U.S. foreign relations.”
OLC reiterated this framework
during the first Trump Administration concerning U.S. airstrikes
against Syria associated with the regime’s chemical weapons program. In
explaining the “national interests” test, OLC cited the protection of
U.S. persons and property, assistance to allies, support for the UN, and
the promotion of regional stability as exemplifying the interests past
presidents have relied on. Trump’s letter
to Congress on the Iran bombing dutifully asserted: “The strike was
taken to advance vital United States national interests, and in
collective self-defense of our ally, Israel, by eliminating Iran’s
nuclear program.” This so-called limitation on presidential power is no
limitation.
During
the Vietnam War era, the administrations of Lyndon Johnson and Richard
Nixon justified military involvement in part on the 1964 Gulf of Tonkin
Resolution and partly based on what amounted to a reinterpretation of
our constitutional arrangements. In a famous 1966 memorandum,
then-State Department Legal Advisor Leonard Meeker observed that the
Framers vested the president with inherent authority to respond to an
invasion of the U.S. even before Congress could react. In the same
spirit, he argued, a 20th-century president, acting in “a far smaller
world,” should be able to repel equivalent threats even if far from our
shores. This living Constitution approach would produce the same
conclusions as OLC’s “national interests” test based on history.
Of course, Congress, facing eroding support for the Vietnam War, tried to recapture its primacy in war-making by enacting the War Powers Resolution of 1973
over Nixon’s veto. The WPR codified Congress’s more stringent
understanding of the President’s Article II authorities. It imposed
requirements for interbranch consultation and reporting should the
commander-in-chief introduce U.S. forces “into hostilities or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances.” The WPR also required the president to
withdraw troops deployed abroad in 60 days unless Congress extended his
authority. But lest it be thought Congress was adding to presidential
power, the WPR provided: “Nothing in this chapter... shall be construed
as granting any authority to the President with respect to the
introduction of United States Armed Forces into hostilities . . . he
would not have had in the absence of this chapter.”
Despite
that caveat, the Justice Department has cited the WPR to confirm its
expansive reading of presidential authority. In 2011, during the Obama
administration, OLC wrote that the WPR shows Congress’s acquiescence to
an understanding that Article II authorizes presidents to “dispatch...
armed forces outside of the United States, either on missions of
goodwill or rescue, or for the purpose of protecting American lives or
property or American interests.” After all, OLC says, the reporting
requirement is triggered only 48 hours after a deployment, and no
president need withdraw before 60 days have passed. This structure
“makes sense only if the President may introduce troops into hostilities
or potential hostilities without prior authorization by the Congress.”
It
may seem ironic that Obama, who opposed the invasion of Iraq, embraced
so expansive an understanding of presidential war power. But Democratic
presidents have been no less likely to deploy force abroad than
Republicans. The Reiss Center on Law and Security at the NYU School of Law maintains a database
of all reports presidents have filed with Congress under the War Powers
Resolution. The database includes 126 such letters responding to the
WPR’s requirement of an initial report within 48 hours of military
deployment. Ford issued 4, Carter, 1, Reagan,14, George H.W. Bush, 7,
Bill Clinton, 38, George W. Bush, 9, Obama 28, Trump, 6, and Biden, 19.
Not all these deployments were equally significant, and the Democratic
presidents may have been more fastidious than Republicans in their
reporting. Yet the readiness of Democratic presidents to deploy military
force unilaterally is plain. And Obama was second to none in offering
stretchy statutory interpretations to maintain his authority, most
infamously insisting
that he was not violating the 60-day WPR limit on military deployment
in Libya because U.S. planes helping to facilitate the continuing
bombing of Qaddafi were not engaged in “hostilities” within the meaning
of the WPR.
Unfortunately,
what OLC under presidents of both parties considers our current
constitutional settlement eviscerates the core virtue undergirding the
original design: deliberation. The founding generation held that a
decision to deploy the military abroad should be preceded by careful and
inclusive reflection among three elected institutions, the House, the
Senate, and the President. As George Washington wrote to South Carolina Governor
William Moultrie: “The Constitution vests the power of declaring War
with Congress; therefore, no offensive expedition of importance can be
undertaken until after they shall have deliberated upon the subject, and
authorised such a measure.” Defenders of executive unilateralism in
war-making often emphasize how technology and global interconnectedness
mean distant events can impinge on our national security. What is too
often ignored, however, is that technology and interconnectedness—and
the infinitely greater impact of American decision-making—magnify the
consequences of reckless unilateral decisions to go to war.
The
United States has no clear path out of its current institutional
fecklessness. Presidents do not readily embrace more dependency on the
legislative branch. Congress, even when less supine than the 119th, has
been all too eager to defer to the president, especially, but not
exclusively, when one party controls both ends of Pennsylvania Avenue.
The federal judiciary has resisted virtually every attempt to restrict
presidential military deployments. Understandably, courts think
themselves ill-equipped to impose judgments on the political branches
with life-and-death national security consequences beyond their
competence to assess, let alone manage.
Many
commentators treat the unconstitutionality of bombing Iran as
self-evident. To the Framers, it might well have been. In 2025, however,
no one in authority takes war powers originalism seriously. The
remaining institutional constraint—politics—is, for now, not even a
speed bump slowing a belligerent president.
Peter
M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law
Emeritus at Ohio State University and a Distinguished Scholar in
Residence at the New York University School of Law. |