The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An Unconstitutional War Results in a Bad Deal
Trump's failure to secure constitutionally required congressional authorization for his war with Iran helped ensure the US lacked the staying power necessary to prevail.
Today, the US and Iran announced an agreement to end the war between them. The agreement may also lead to a ceasefire between Israel and Iran and its allies, such as Hezbollah. To put it mildly, this is not the "unconditional surrender" Trump promised us, and that defenders of the legality and wisdom of the war, such as co-blogger Steve Calabresi, expected. Hopes that the war would result in regime change - an objective endorsed by Trump early in the conflict - have evaporated. Indeed, it looks like we haven't gained much of value than we had before the war, and may even have lost some key ground.
The new agreement (whose terms have not yet been fully released) apparently includes the reopening of the Strait of Hormuz (though which much of the world's oil supply passes), and an end to the US blockade of Iran. There is also likely to be sanctions relief for Iran, and some kind of Iranian commitment not to pursue nuclear weapons. But, of course, the Strait was open before the War. And Iran has promised to forego nuclear weapons before, including in the Obama-era JCPOA agreement, which Trump repudiated during his first term, because it favored Iran too much. If Iran's regime could be trusted on these kinds of points, there would have been no need for conflict with them in the first place.
Moreover, international relations scholar-turned conservative political commentator Richard Hanania has explained in an insightful piece, Iran made one important gain in this conflict. They showed they can shut down the Strait of Hormuz, and that the US lacked either the ability or the will to force them to stop. That's leverage they can use in any future conflict, too, and perhaps to deter the US from taking action against them in the future at all.
In a Dispatch article written soon after the war began and a later post at this site, I explained why the war is illegal, because it lacks constitutionally required congressional authorization, and also violates the 1973 War Powers Act. In the Dispatch article, I also warned that this illegality made it more likely that the war will end in failure:
This [constitutional] 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.
This dynamic of weak US will arising from low public support for the war is pretty much exactly what has happened. US and Israeli forces scored some impressive tactical successes. But Trump's failure to build up political support for the war ensured it was unpopular from the beginning, and got even more so over time. Once Iran closed the Strait of Hormuz and oil prices went up, the war's popularity fell still further, and Trump began seeking an easy way out.
Had Trump built up sufficient public support to get congressional authorization, the US would have had greater staying power, and would not have caved so easily. Alternatively, if he tried to get that support and failed, we could at least have avoided the war, and all the attendant expense and loss of life.
As noted in the Dispatch article, I am far from a categorical opponent of military intervention, and I would be happy to see regime change in Iran. But, as the saying goes, "war is a contest of wills." The constitutional requirement of congressional authorization helps ensure we don't start a major conflict without having a commitment strong enough to prevail. When the president forgets that and ignores the Constitution, he not only acts lawlessly, but also greatly increases the risk of defeat.
