The Volokh Conspiracy
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My New Dispatch Article on "Why Donald Trump's Iran War is Unconstitutional"
The article explains why the war requires congressional authorization,and why this requirement is important.
Today, The Dispatch published my article "Why Donald Trump's Iran War is Unconstitutional." Here is an excerpt:
The large-scale U.S. military attack on Iran (undertaken in collaboration with Israel) is blatantly unconstitutional, even if its wisdom and morality 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 obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. President Donald Trump got no such authorization, nor did he even try….
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 obviously large enough to qualify as a war. Thus, it just as obviously requires congressional authorization. President Donald Trump got no such authorization, nor did he even try….
The framers of the Constitution deliberately gave Congress exclusive control over the power to initiate war. As James Madison put it, "[i]n no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department … [t]he trust and the temptation would be too great for any one man."
Alexander Hamilton—Madison's great rival and the leading champion of broad executive power among the Founders—actually agreed with Madison on this point. Defending President George Washington's 1793 proclamation of neutrality in the then-raging war between Britain and France, Hamilton wrote that "the Legislature have a right to make war" and therefore it follows that it is "the duty of the Executive to preserve Peace till war is declared." Hamilton and Madison…. were united on the proposition that no one man could take the nation to war, and that the executive must refrain from initiating such a conflict without congressional authorization….
This consensus undermines claims by modern advocates of untrammeled executive war powers that Congress' authority to declare war was just a power to declare a technical legal state, leaving the president free to initiate large-scale hostilities at will. The whole point of giving Congress the power to declare war was to ensure the executive could not start a massive conflict on its own, as European monarchs routinely did….
This limitation on presidential power is more than just a technical legal point. 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 actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
Later in the article, I rebut the oft-made claim that the War Powers Act of 1973 somehow authorizes the president to start wars:
Many… argue that Trump's actions are authorized by the War Powers Act of 1973. But the WPA is a limitation on presidential power, not a grant of it. Enacted in the wake of real and imagined presidential abuses during the Vietnam War, it requires the president to secure congressional approval within 90 days of entering U.S. troops into "hostilities" or situations "where imminent involvement in hostilities is clearly indicated by the circumstances." The purpose of this requirement is to constrain even small-scale combat deployments that might otherwise not require congressional authorization, because they fall short of being a war. Section 2(C) of the WPA makes clear that the statute does not expand presidential war initiation authority, emphasizing that "[t]he 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." None of these three preconditions exist in the current situation.
The article also address nonoriginalist arguments against requiring congressional authorization for war, such as claims that it would prevent the US from taking enemies by surprise, arguments that Congress cannot act fast enough when needed, and more.
