Trump’s attack on Iran and restoring constitutional war powers

How we can safeguard against further such abuses of power.

President Richard Nixon Points to a Map of Cambodia during a Vietnam War Press Conference in April 1970. Congress was frustrated with the Nixon administration’s secret bombings of Cambodia during the Vietnam War without congressional consent.

By Brian Finucane

Donald Trump’s strikes on Iran represent yet another power grab by this president at the expense of Congress’s constitutional prerogatives. Although such unauthorized action is not wholly novel, Trump’s attack further undermines the rule of law in the United States and internationally. Responding to this executive overreach will require both legislative and political action.

In attacking Iran, Trump arrogated Congress’s Article I war powers. The U.S. Constitution gives to Congress—not the president—the power to declare war. The legislative branch exercises this power both through declarations of war (such as those against the Axis Powers in World War II) and authorizations for the use of military force (such as those for the war on terror and for the 2003 invasion of Iraq). Thomas Jefferson lauded this feature of the Constitution in a 1789 letter to James Madison, noting it was "one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body.”

Article I also grants Congress a number of related powers, including to issue letters of marque and reprisal and to call forth the militia. Congress is also endowed with what some experts regard as the greatest war power: the power of the purse.

Article II of the Constitution in turn makes the president the commander in chief of the military. The framers of the Constitution envisaged that the president would have the authority to “repel sudden attack” without prior congressional authorization. That was obviously not the situation leading to Trump’s attack on Iran.

Trump’s airstrikes against Iran strain even the executive branch’s own legal doctrine on presidential war powers. This framework invests far broader power in one person than the text of the Constitution provides for or that Congress or the courts have endorsed.

The framework provides that the president may use force unilaterally to advance sufficiently important national interests, unless the action would amount to “war in the constitutional sense,” requiring congressional authorization. The involvement of ground forces and related risk of escalation weigh heavily in whether action will amount to “war in the constitutional sense.” Given the presence of more than 40,000 U.S. troops in the Middle East and the predictable threat of Iranian retaliation, Trump’s action seems to have crossed even the executive branch’s own legal redlines.

The conflict also implicates the 1973 War Powers Resolution. Contrary to some misconceptions, this law neither authorizes the use of force by the president nor categorically prohibits such action. Instead, it imposes reporting requirements for certain military actions and a 60-day deadline for removing U.S. armed forces after they have been “introduced” into hostilities. As amended, the resolution also provides for expedited procedures for congressional action opposing such introductions into hostilities—a joint resolution in the Senate (presented to the president for signature or veto) and a concurrent resolution in the House (not presented to the president).

Trump’s attack on Iran and the prospect of further such strikes highlight the dangers the framers sought to mitigate and the inadequacy of current legal and political guardrails.

The framers intended for determinations on using force to require the collective decision-making of the people’s elected representatives rather than following the whims of one person. Such deliberations would presumably publicly surface whether military action was necessary, its costs and benefits, and potential alternatives such as diplomacy. In disregarding Congress’s constitutional role, Trump short-circuited this process.

Trump’s war was risky. Bombing a nation state possessing an arsenal of ballistic missiles and long covert reach is a different matter than drone-striking jihadis in Somalia. The potential for escalation was significant. Though, thankfully, there were no U.S. casualties from the predictable Iranian retaliation, that was not a given and further retaliation might yet come.

Benefits of the attack are hazy at best. Although U.S. strikes might have caused substantial physical damage to three nuclear facilities, it is too soon to characterize them as a success. The fate of highly enriched uranium stockpiles remains unclear, and if the strikes prompt a greater Iranian desire for the ultimate deterrent, they might have been counterproductive. Certainly, military action alone also cannot provide the restrictions, monitoring and transparency that diplomacy can deliver as a long-term solution constraining Iran's ability to produce nuclear weapons.

Existing legal tools to curtail or prevent further unauthorized military action are likely to be inadequate. For a variety of reasons, recourse to the courts is unavailing. The guardrails imposed by the War Powers Resolution provide considerable room for action. In addition, despite the expedited procedures for legislation to require the removal of forces from hostilities, the hurdles to enacting binding legislation are formidable.

The more fundamental challenge in constraining presidential military action is political. The predicament is illustrated by the recent vote on legislation introduced by Sen. Tim Kaine (D-Va.) to terminate hostilities with Iran barring congressional authorization. The measure narrowly failed a procedural vote with Rand Paul of Kentucky, the sole Republican senator to vote to safeguard Congress’s authority over war. Hopefully this legislation sent a political signal to the White House discouraging further such attacks. Nonetheless, the tally reflects the crisis in the Article I branch of government.

Fixing this situation will require both legislative and political action. Legislative reforms should include small-scale fixes to define terminology in the 1973 War Powers Resolution, potentially through an amendment to the National Defense Authorization Act, as well as longer-term, structural reforms. The bipartisan National Security Powers Act, for example, would replace the War Powers Resolution with more robust safeguards, including funding cut-offs for hostilities not authorized by Congress.

There is no silver bullet legislative solution to the problem of a president bypassing Congress to use force unilaterally. The solution to the problem of an imperial presidency and an indifferent Congress is political. The people elected to the White House and Congress must be willing to fulfill their oaths to and responsibilities under the Constitution.

Brian Finucane, senior adviser to the U.S. Program at the International Crisis Group, is a former attorney adviser on war powers and the use of force at the U.S. Department of State.

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