The Attack on Iran Is Unlawful
Trump's attack on Iran plainly violates the War Powers Act. Limits on executive power are most important when they are inconvenient.
Hours after the U.S. bombed several sites in Iran, President Donald Trump called the operation a "spectacular military success."
Whether or not that turns out to be true, the attack looks rather different as a legal matter. Trump appears to have significantly overstepped his authority, as the attack was not authorized by Congress and was not in response to an attack on American soil or American troops. The best the White House has been able to come up with so far is that Trump acted under the legal authority "afforded to him as Commander in Chief," as a White House official told Real Clear Politics on Saturday night.
Sorry, but that simply isn't good enough.
Under the War Powers Act of 1973, the law that governs presidential authority to order military strikes, there are three lawful ways for a commander-in-chief to order the bombing of another country. None of them appears to cover the strikes carried out on Saturday.
Here is the relevant section of the law (emphasis added): "The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."
The first two options provided by the law are clearly not involved here, as Congress did not declare war against Iran and did not pass an authorization for the use of military force (as was done to allow the invasion of Iraq in 2002).
The third circumstance also does not apply to Trump's attack on Iran, which was not carried out in response to an attack on American troops and did not respond to a crisis threatening American soil. As Reason's Matthew Petti wrote in the wake of the attack last night: "This campaign is a war of choice. And the administration did not try to sell it to Congress—let alone the American people—before embarking on it. Instead, Trump watched Israel launch a first strike on Iran, then threatened to get involved, talking himself into a corner. Now he seems to be hoping that Iran simply won't respond to being attacked."
The War Powers Act does not include a clause allowing presidents to bomb other countries just because. It also—despite the fact that the law is frequently discussed in political media in these terms—does not allow a window of 48 hours for the president to do whatever he pleases before alerting Congress and seeking further authorization.
That 48-hour window (as outlined in a subsequent section of the War Powers Act) applies only if the president is engaged in a lawful use of military force—that is, if he is acting in accordance with one of the three mechanisms built into the first section of the law.
"If there's an attack in progress on the United States (i.e., currently happening), we expect the president to respond swiftly to neutralize the attack and protect Americans—and then we will hold the president to account," explained former Rep. Justin Amash (L–Mich.) in a post on X. "The Framers of the Constitution agreed at the debates in the federal convention of 1787 that the president should have the 'power to repel sudden attacks' but not the power to otherwise introduce forces into hostilities without congressional approval."
Some current members of Congress seem to be greeting the news of Saturday's attack with appropriate skepticism about Trump's authority.
"This is not constitutional," Rep. Thomas Massie (R–Ky.) wrote on X after Trump announced the attack. Massie introduced a bipartisan resolution last week to block the use of military force against Iran without congressional authorization, but the measure has not received a vote.
"While President Trump's decision may prove just, it's hard to conceive a rationale that's Constitutional," Rep. Warren Davidson (R–Ohio) wrote on X.
Some Democrats, including Reps. Alexandria Ocasio-Cortez (D–N.Y.) and Rep. Sean Casten (D–Ill.), said Trump's decision to strike Iran without congressional authorization should be grounds for impeachment. That is one option that should be on the table as Congress considers how to respond to Trump's ordering of this attack.
But there are unlikely to be any direct political consequences for Trump as long as House Speaker Mike Johnson (R–La.) is willing to look the other way. In a statement released on Saturday night, Johnson said the strikes were "necessary, limited, and targeted."
Even if that is true, it would just underline the importance of getting approval from Congress. The White House could have made the case to lawmakers (and their constituents) that a strike against Iran's nuclear facilities was necessary and in the best interest of the United States.
The War Powers Act should not be treated as a series of suggestions that can be discarded when they seem inconvenient. Indeed, limits on executive power are most essential at the moments when they are inconvenient—otherwise, they are meaningless. Trump's attack on Iran was not just an assault on a suspected nuclear weapons program; it was yet another blow against the separation of powers and the fundamental structure of the American constitutional system.
