The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An Unconstitutional War
Trump's attack on Iran is obviously unconstitutional. The moral and policy issues are a closer call.
Last night, the US and Israel initiated a large-scale military attack on Iran. This action is blatantly unconstitutional. Its wisdom and morality are are more debatable.
Article I of the Constitution gives Congress the exclusive power to declare war. One can debate the extent to which presidents can initiate relatively small-scale military actions, and such debates have raged for decades. But this attack is very obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. And Trump didn't get any, and indeed did not even try to do so.
Don't take my word for the proposition that it's a war. Take Trump's! He himself has called it a war, and proclaimed that the objective is regime change.
The closest historical analogue is Barack Obama's 2011 air campaign against Libya, which was also attempt at regime change carried out with air strikes. For those keeping score, I condemned Obama's action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Iran is a larger and more powerful nation than Libya, and thus this is likely to be an even bigger conflict. And, as I have said before, Obama's illegal actions don't justify Trump's (and vice versa).
The wisdom and morality of this action are a closer call. I am no reflexive opponent of military intervention, and I think regime change is sometimes justified. I have long differed on these issues with more dovish/isolationist libertarians.
The Iranian regime is a brutally oppressive dictatorship that recently slaughtered tens of thousands protesters, has a long history of promoting terrorism, and constantly seeks to develop nuclear weapons. For these and other reasons, I would welcome regime change there. Even if the new government is far from ideal, it is likely to less awful than regime of the ayatollahs. But I am skeptical that regime change can be achieved with air and missile strikes alone. And, at this point, it does not not seem like the US and Israel have either the will or the capability of launching a major ground invasion. If the latter is attempted, it might turn out to be too costly to be worth it.
Perhaps airpower could achieve regime changes if coupled with a strong opposition movement within Iran. But Trump waited until after the regime crushed the protests that arose a few weeks ago, in the process slaughtering tens of thousands. It may be difficult or impossible for a strong opposition movement to emerge again, without a ground attack.
War is inherently dynamic, and it would be foolish to make definitive predictions. I have been largely out of the field of security studies for many years now, and thus no longer have much relevant up-to-date expertise. Thus, at this point, I can only say I am skeptical this intervention will achieve the regime change Trump seeks, or any other beneficial result great enough to outweigh the damage done to our constitutional system.
That latter is not just a technical legal issue. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military action have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents.
I will note one clear beneficial consequence of this action that has largely been ignored by the media so far: Iran is a major supplier of weapons to Russia for its war of aggression against Ukraine. As long as Iran is fighting the US and Israel, it is unlikely to continue extensive weapons deliveries to Russia, since it will need those arms for its own use.
But, on balance, it would have been more effective to help Ukraine by simply giving them weapons directly, which Trump has largely stopped doing. And, unlike starting a war without congressional authorization, giving arms to Ukraine doesn't violate the Constitution, and does not expose US forces to any significant risk.
In sum, this is a blatantly unconstitutional war. Time will tell whether it achieves any beneficial results that outweigh the costs - including the damage to our constitutional system of separation of powers.
