Resolving some legal issues requires drawing a line through a gray area. Others can be resolved without having to draw a line, in recognition of an old insight: that there is a dawn and a dusk does not mean there is no noon or no midnight. Whether the President had power under the Constitution to attack Iran without congressional approval is an issue that falls in the latter category, within the Constitution’s midnight: wherever a line might be drawn in harder cases, this is not one of them. For if the President may initiate a war that “could have destroyed the entire Middle East,” as President Trump put it—without congressional approval, when ample time exists to seek congressional approval—then Congress’s war power is set to naught, and Presidents for all intents and purposes are then vested with the same war powers as George III.
It should be no surprise that this was not the intent of the Constitution’s Framers. It is difficult to read their words without agreeing with Abraham Lincoln. He said:
The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
Chief Justice William Rehnquist, quoting Justice Robert Jackson in Dames & Moore v. Regan (1981), shared Lincoln’s belief that the Framers rejected the English model. Writing for the Court, he said: “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.”
Faced with the solidity of the Framers’ consensus, some of the administration’s supporters retreat to a secondary source of authority: constitutional custom. They present a list of instances in which use of force was undertaken by various presidents without congressional approval, including in Korea, Kosovo, Libya.
This is a curious argument coming from supposed “originalists,” who purportedly believe in adherence to the Framers’ original understanding of the Constitution’s meaning. But it’s not a specious argument. Historical practice, the Supreme Court has said, reflects “the compromises and working arrangements that the elected branches of Government themselves have reached.” Hence the Supreme Court, in determining where the power lies in some separation of powers cases, has occasionally looked at how the Constitution has actually been applied in day-to-day practice.
Putative historical precedents must be on point, however—and here, they are not. Rarely if ever had a president, acting without congressional approval, exposed the United States to this level of risk by attacking a foreign nation that had not attacked the United States or threatened an imminent attack. Nearly all of the earlier uses of force involve fights with pirates, clashes with cattle rustlers, trivial naval engagements, and other minor uses of force that posed risks that were orders of magnitude lower than those incurred by the attack on Iran. If, as the Department of Justice’s Office of Legal Counsel (OLC) contends in a line of recent opinions, the risk of escalation and risks to U.S. forces are an especially significant factor that would render a use of force more likely to amount to “war in the constitutional sense” (as they have termed uses of force that do require congressional authorization under Art. I of the Constitution), the current strikes against Iran are simply not in the same ballpark as these earlier cases the administration’s supporters cite.
The breadth of those risks cannot be fully be detailed here, but beyond the obvious threat to the 40,000 US troops stationed in the region, they included the threat to allies’ armed forces and to foreign and American non-combatants abroad; of retaliation by “sleeper cells” within the United States; of incentivizing the acquisition of nuclear weapons by Iran and other states; of enflaming long-term antagonisms in the region, or sparking chaos or civil war or a repressive crackdown within Iran, or Iran’s “Syriafication” into a vastly more dangerous failed state; threats from drones, cyber weapons and improvised devices backed by unidentified operators; and of unknowns all of which could loom large in a full-scale war in the Middle East.
More important, in light of the clarity of the Framers’ intent, it’s perilous to adopt an interpretive approach that would in effect transfer Congress’s war power in toto to the President. Not all incidents are of constitutional moment. One or two stand-alone occurrences cannot suffice to reallocate fundamental constitutional powers. At a minimum, a pattern of practice of considerable duration must have emerged. It must be regarded by both branches as a juridical norm; the incidents comprising the practice must be accepted, or at least acquiesced in, by the other branch. Examples are the President’s power to recognize foreign governments or the Senate’s power to condition its consent to treaties. These practices trace to the earliest days of the Republic and have long been accepted by the Senate, House of Representatives, and the President as settled constitutional norms.
But U.S. military actions such as Korea, Kosovo, and Libya that exposed the United States to potentially significant risk are not part of such a practice. Such anomalies are not constitutional amendments—they are violations. They do not burnish the Framers’ design—they deface it. George Washington, recognizing the utility of occasional reference to historical practice, thus cautioned that it was “also the weapon by which free governments are destroyed.”
For the purposes of argument, assume that the threat posed to the United States by inaction would have been greater than the risks incurred by the attack. If so, the Constitution assigned that judgment to Congress. It empowers Congress, not the President, to declare war. The functional advantages of executive action—unity, decision, activity, secrecy, and dispatch, famously detailed by Alexander Hamilton in Federalist 70—argue for sole presidential power only to respond to a sudden or imminent attack. The Framers intended that the President be permitted to act alone only in an emergency, where Congress has no time to act. But no emergency existed here. The war had been fought for eight days before the United States attacked Iran, during which the Executive collaborated constantly with Israel, which had claimed for years that Iran was on the verge of acquiring a nuclear weapon (even when the U.S. intelligence community did not share that assessment, as continues to be the case). Congress clearly had time to act had its approval been sought.
It’s possible, of course, that a congressional debate could have been rancorous. It could have exposed deep divisions over the propriety of joining Israel as a “team”—Trump’s word—in attacking Iran, particularly if, as he said, the Israelis did not know “what the f*** they are doing.” And as for public sentiment, polls consistently showed opposition to attacking Iran. In a democracy, that matters. Even if Congress were disposed to grant its approval, an independent examination of the Executive’s war plans could have been beneficial—by considering, for example, whether Iran was in fact “very close” to acquiring a nuclear weapon, as Trump claimed (but the U.S. intelligence community did not seem to back up), or whether the contemplated air strikes actually could be expected to “completely and totally obliterate” Iran’s nuclear program, as he insisted they had. Each of those questions required a reliable answer before going to war, yet on each question intelligence assessments reportedly were conflicting or uncertain.
Involving Congress in the decision to go to war does not guarantee a wise outcome. But it does raise the likelihood that multiple viewpoints will be heard—and that if the nation were to become involved in a major military conflict, the American people will understand in advance the risks that are entailed. Whether to risk “destroy[ing] the Middle East”—and potentially much beyond it—is not, as Lincoln said, a decision to be made by one man.
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