The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Law Is Irrelevant to the U.S. Attack on Iran," by Prof. Jack Goldsmith (Harvard)
"And Congress is on the hook as much as the president."
An excerpt from Prof. Goldsmith's post at Executive Functions:
We're already seeing a debate about the legality of President Trump's use of force in Iran. I've grown cynical about these debates. Law is the language we use when criticizing presidential war powers—and it has been since the beginning of the nation. But the truth is that there are only political constraints.
As I've been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people. They have occasionally risen up to constrain the president's deployment of troops and uses of force—for example, in Vietnam, and in Lebanon in 1983, and in Somalia in 1993. But those actions are rare and tend only to happen once there is disaster.
The Office of Legal Counsel opinions on the presidential use of force are famously promiscuously permissive. Some will now invoke the single acknowledged OLC limitation on unilateral uses of force to criticize the Iran attack. As the opinion justifying the attack on ISIS in 2014 explained: If the "'anticipated nature, scope, and duration' of the planned military operations, analyzed in light of the applicable historical precedent" amount to "war," the president must secure prior congressional approval.
President Trump in his statement about the attack said: "The lives of courageous American heroes may be lost, and we may have casualties," and that "that often happens in war." Does that implicate the OLC limitation and require him to seek congressional approval? It would be very easy for OLC to conclude not.
First, I am not aware of any episode in which this standard was invoked to deny the president the authority to use force. It has been mentioned only in opinions justifying force and it has been fudged in various ways.
Second, OLC made clear in its Libya opinion that the "anticipated nature, scope and duration" test "will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period." (Emphasis added.) …
None of the above is meant to justify the Iran strikes or endorse them. I'm praying for U.S. troops and for everyone involved, and hoping for the best. But it is hard to be optimistic given the terrible U.S. record with violent military disruptions and regime changes in and around the Middle East in my lifetime. Maybe this time will be different.
My point is that the rhetoric of legal constraint, and debates about the legality of presidential uses of force, are empty. And they deflect attention from Congress's constitutional responsibility to exercise its political judgment and the political powers that the framers undoubtedly gave it to question, to hold to account, and (should it so choose) to constrain presidential uses of force.
As Walter Dellinger wrote for OLC 30 years ago: "in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President, as Commander in Chief, considerable discretion in deciding how that force is to be deployed." Congress in giving the president a gargantuan military, and in its "oversight" and lack of imposed constraint, is as responsible for the use of force against Iran, for better or worse, as the president.
The whole thing is much worth reading.
