Will SCOTUS Review the Iran War's Constitutionality? Don't Count on It.

The judiciary is largely absent from the long-running constitutional debate over undeclared foreign wars.

In a recent edition of this newsletter, I argued that the war with Iran is unconstitutional because President Donald Trump took the United States to war without first obtaining a congressional declaration of war as required by the U.S. Constitution. In response, a reader we'll call "John A." wrote in to say the following: "Unconstitutional perhaps, but enforcement is political, not judicial."

As a practical matter, "John A." is probably right.

Despite the fact that the Constitution vests the power "to declare War" exclusively in the hands of Congress via Article I, Section 8, the U.S. Supreme Court has proven itself unwilling over the past half-century or so to hear cases challenging the usurpation of that congressional power by the executive. In 1970, for example, the Supreme Court declined to hear a case known as Massachusetts v. Laird, in which the Bay State wanted the Court to rule on the constitutionality of the Vietnam War, which, like the current Iran War, was never formally declared by Congress.

"Today we deny a hearing to a State which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war," Justice William O. Douglas wrote in dissent. "Another way of putting the question is whether under our Constitution presidential wars are permissible? Should that question be answered in the negative we would then have to determine whether Congress has declared war. That question which Massachusetts presents is in my view justiciable."

The Supreme Court did not explain why it refused to hear Massachusetts v. Laird and several other cases like it that centered on the Vietnam War. But legal scholars generally think the Court dodged the issue because most of the justices saw it as a "political question" that was best left for Congress and the president to hash out. As Michal Belknap argued in The Oxford Companion to the Supreme Court of the United States, "unwilling to precipitate a conflict with the Executive, the Court protected its institutional interests by leaving the question of the legality of the war to be resolved in the political arena."

Of course, the Supreme Court has not always taken such a hands-off approach in matters of war and executive power. In Youngstown Sheet and Tube Company v. Sawyer (1952), for example, the Court famously rejected President Harry Truman's claim that his "inherent" executive authority allowed him to seize control of most privately owned American steel mills during the Korean War as a national security measure. "The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President," the Court stated. Yet "the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." Indeed, the Court added, "it would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."

You may be thinking that the founders also entrusted the authority to declare war "to Congress alone in both good and bad times." And you would be correct to think it. The logic of Youngstown Steel does cut against the idea of a president launching a war without congressional authorization just as it cuts against the idea of a president seizing steel mills without congressional authorization.

But the logic of Youngstown Steel is apparently no match for the flexibility of the "political questions doctrine," which has conveniently allowed the Supreme Court to sidestep the thorny constitutional debate over undeclared foreign wars for many decades now with no end in sight.

Which brings us back to the point made by reader "John A." If Trump is going to pay a price for launching a war without congressional authorization, that price will have to be a political one, since the judiciary is basically AWOL.