Trump's War Against Iran is Unconstitutional

In my last essay for this blog, I explained why the U.S. violated international law by initiating its war on Iran. I did not directly discuss whether Israel also violated international law by initiating the war, but I arguably implied that it did. Israel faced (and continues to face) more serious threats from Iran than the U.S. did (or does), but under the truce that more or less held until a couple of days ago, Iran's proxy Hezbollah was not attacking Israel, so that Israel wasn't being attacked or under threat of imminent attack. (Likewise with respect to Hamas, which has also received support from Iran). Therefore, Israel could not claim self-defense under Article 51 of the U.N. Charter. However, if I was mistaken about that assumption and Israel acted in lawful self-defense, then the U.S. attack would also have been lawful under Article 51 as collective self-defense.

To be clear, I don't believe the war is lawful. Moreover, even if we could regard Israel as under actual or imminent attack by Iran, that would go only to whether initiating the war was valid (jus ad bellum), not to the conduct of the war (jus in bello), which also violated international law, insofar as the initial decapitation strike targeted at least some civilians.

In any event, in today's essay, I pivot to U.S. constitutional law.

Congress has the power to declare war. It is often noted that the U.S. has not declared war since World War II, but that's quite misleading. As I noted in a 2002 column, formal declarations of war are largely a relic. What matters is that Congress, the branch of government closest to the people, go on record as supporting the spilling of American (and foreign) blood and the spending of treasure on the war.

Don't take my word for it. Consider what Alexander Hamilton wrote in Federalist 69 in response to critics of the Constitution who contended that it created a too-powerful presidency:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature . . . .

Prior presidents have understood that obtaining congressional assent to war is not only a constitutional requirement but sound politics. In each of the last three major U.S. wars in the Middle East -- Iraq in 1991; Afghanistan in 2001; Iraq in 2002 (in advance of the 2003 war) -- Congress passed an Authorization for the Use of Military Force or AUMF, which accomplishes the core domestic constitutional purpose of a declaration of war.

None of that is to deny that there are circumstances in which the president, as commander-in-chief, has the power and duty to use military force without first obtaining congressional assent. Those include minor skirmishes (such as those against pirates) as well as major conflicts in which the U.S. is attacked by a foreign power or domestic insurrectionists. It was in the latter context that the Supreme Court in 1862 upheld President Lincoln's use of military force against the rebels without prior congressional authorization.

The constitutional limits on the president's power to unilaterally initiate a war was also recognized in the third heading of the War Powers Resolution (WPR) of 1973, which declares:

The 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.

It is quite clear that President Trump did not comply with the WPR. The United States bombed Iran's nuclear sites last June. He threatened Iran with retaliation for its shooting of protesters two months ago. There was more than adequate time to go to Congress seeking authorization for the use of force, contingent on the failure of diplomacy--much along the lines that President George W. Bush sought authorization for the use of military force in Iraq in October 2002, which he did not use until March 2003.

Trump also did not comply with the further requirement of the WPR that, within 48 hours of initiating hostilities, he deliver a written report to congressional leaders "setting forth: (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement." That deadline has now passed without any indication of Trump's having complied. (The administration reportedly briefed most of the "gang of eight" shortly before the attack, but an oral briefing is not the written report required by the WPR.)

Some readers might be puzzled by my having slipped from arguing that the attack on Iran without prior congressional authorization is unconstitutional to arguing that it violates the WPR. However, the WPR itself asserts that it essentially restates what would otherwise be constitutionally required. Its stated purpose is"to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities . . . ."

To be sure, since the WPR was adopted, various presidents have claimed it goes beyond the constitutional requirements or is affirmatively unconstitutional insofar as it imposes limits on the president's inherent powers as commander in chief. In addition, even when presidents have not directly contested the validity of the WPR, they have sometimes construed it quite narrowly. For example, in his 2011 testimony to Congress, former Yale Law School Dean Harold Koh (who was then the Legal Adviser to the State Department) took (and cited prior practice to support) the view that the U.S. was not engaged in "hostilities" in Lybia that trigger the WPR's 60-day limit on the use of force without express congressional approval because while U.S. forces were inflicting damage on Qadhafi's forces, the latter lacked the capacity to fire back effectively at the former.

Even assuming that Professor Koh was correct in 2011, that rationale does not apply now, as the U.S. and its allies have already incurred lethal casualties. More broadly, I find the arguments various presidential administrations have offered against the constitutionality of the WPR to be unpersuasive and self-serving. The core principle of the WPR is that the president does not have carte blanche to initiate wars of choice. That is constitutional in the strong sense that it simply reiterates the principle that Hamilton rightly ascribed to the Constitution's limited delegation to the president to conduct wars, not to initiate them.

Meanwhile, votes are expected in Congress this week on whether to disapprove the continuation of the war. Any such measure is unlikely to succeed. Indeed, given Republican control of Congress, it seems more likely that Congress would authorize the continuation of the war. Would that render it legal?

So far as the U.S. Constitution is concerned, the answer is yes. In The Prize Cases the Supreme Court determined that President Lincoln acted constitutionally in using military force in response to the rebellion of southern states but added that to the extend that he exceeded the scope of his authority as commander in chief, subsequent approval by Congress was effective in retroactively authorizing his conduct. Note, however, that such ratification, were it to occur with respect to Iran, would not render the war legal under international law.

I'll close with three caveats. First, in saying that the war is illegal and unconstitutional, I do not claim that any U.S. court would have jurisdiction to declare it so. The courts have invoked the political question doctrine and standing limits to avoid adjudicating the legality of prior conflicts. There is every reason to think that they would do the same here--except perhaps in a tangential context involving a dispute between private litigants over property or a contract, where the result would not be an injunction against the conduct of the war (or even a declaratory judgment).

Second, both in person and online, a number of people have asked me why I'm bothering to describe the illegality of the war in light of the fact that Trump obviously doesn't care about following the law in this or most other settings. Partly I suppose it's just habit, but I also think it's worth pointing to the law as part of a political argument. The fact that a course of action is illegal may do some work in strengthening opposition to that course of action.

Third and finally, in saying that the Iran war is illegal and unconstitutional, I'm not necessarily saying that one should oppose it, all things considered. I do oppose it, all things considered, but illegality and unconstitutionality are not a sufficient reason for opposition. Some actions are morally or otherwise justified even though illegal.

In recent days, a fair number of Iranian Americans who have long opposed the brutal repression of the Islamic Republic have expressed deep satisfaction with the killing of Ali Khamenei and other leaders of the regime. I do not begrudge them those feelings, and they give me pause. If I thought it likely that the regime would fall and be replaced with a democratic government that respects human rights, I would think it a difficult question whether the war was worth supporting, notwithstanding its illegality.

However, President Trump's call to Iran's unarmed citizens to rise up strikes me as extremely  unlikely to result in that outcome. The best realistic possibility is probably something like the Venezuela model--in which a pragmatic regime member assumes power and is more friendly to the United States and much less of a menace to Israel and the Sunni-led countries in the region. Indeed, given Trump's statements about wishing to talk with the new Iranian leadership, that appears to be the administration's goal. Such an outcome is undoubtedly better than some of the alternatives, but it is not a sufficient basis for this war, given the certain costs in blood and treasure as well as the possibility of substantially worse outcomes. And it certainly does not justify the president's having undertaken the war unilaterally when he could have sought congressional approval.

-- Michael C. Dorf