JONATHAN TURLEY: Trump’s authority on Iran strikes backed by history and law
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As attacks against Iran began, some have already declared the attacks unconstitutional. This includes the immediate reprimand of Rep. Thomas Massie. But although the attack triggers obligations to notify and consult Congress, precedent favors the President in this action.
I am extremely sympathetic to those who criticize the failure to require a declaration of war from Congress before carrying out such operations. I have actually represented members of Congress against such wars. We lost. Courts have allowed presidents to unilaterally order such attacks.
II of the Constitution Section 2 of the article states, “The President shall be commander in chief of the Army and Navy of the United States and the militia of the several states.” But the Constitution also makes clear that Congress has the authority to declare war under Article I, Section 8, Clause 11.
Our last declared war was World War II. Since then, Congress and the courts have authorized replacements for the disclosure requirement. They also allowed unilateral attacks on other nations.
President Trump called this action a “war” and said it would not be a limited operation.
The attack would result in calls to comply with the War Powers Resolution passed by Congress in 1973.
The resolution requires the president to report to Congress within 48 hours of engaging U.S. military forces in hostilities “absent a declaration of war.” The WPR mandates that operations must cease within 60 days if congressional approval is not received.
Remarkably, there was a recent classified briefing on the “Gang of Eight” that may have been a precursor to this operation. Secretary of State Marco Rubio confirmed Saturday that he had notified those senators.
Under WPR:
“The President shall consult with Congress whenever possible before introducing the Armed Forces of the United States into hostilities or into situations where the circumstances clearly indicate imminent participation in hostilities, and after each such introduction shall regularly consult with the Congress until the Armed Forces of the United States are no longer involved in hostilities or are removed from such situations.”
The WPR limits such powers to “cases in which hostilities or circumstances clearly indicate imminent participation in hostilities” and can be exercised “only pursuant to (1) a declaration of war, (2) special legal authorization, or (3) a national emergency resulting from an attack on the United States, its territories or possessions, or its armed forces.”
President Trump cited documented attacks by Iran and its proxies on US forces and their allies. It is also a state that supports terrorism and continues to seek nuclear weapons, disregarding the demands of the international community. Recently, the International Atomic Energy Agency (IAEA) announced that Iran has banned itself from these sites again.
Presidents have historically been respected for making such decisions under this vague standard. This was certainly the case with the attacks in Bosnia and Libya under Democratic presidents.
Despite using very respectful language, presidents had long complained about the WPR’s limitations. Nixon’s veto of the legislation was overridden. Past Democratic and Republican presidents, including Obama, have used World War II to conduct such operations. They had asserted their inherent authority under Art.
There is always a fair amount of hypocrisy in these moments. When Obama attacked Libya, there was no widespread reaction, especially from Democrats. When I represented members to oppose the undeclared war in Libya, Obama (like Trump) rejected the need for congressional approval to attack a foreign nation’s capital and military sites to force regime change. Names such as then-Secretary of State Hillary Clinton were praised for their tough actions in Libya.
Critics may also rely on Authorizations for the Use of Military Force (AUMFs) to impose limitations on the president while allowing limited, defined military actions. Such decisions date back to the Adams Administration during the Quasi-War with France.
A 2001 AUMF authorized the President “to use all necessary and appropriate force against nations, entities, or persons he determines to have planned, authorized, committed, or assisted in the terrorist attacks of September 11, 2001.” At the same time, presidents were given the authority to take military action to prevent future terrorist acts against the United States.
The 2002 AUMF authorizes the President to use force “necessary and appropriate” to “defend the national security of the United States against the continuing threat posed by Iraq.” Past presidents have interpreted these AUMFs to address new threats and extend beyond countries like Iraq.
In a 2018 report, the Trump Administration declared that the 2002 AUMF “contains no geographic limitations on where authorized power may be used.”
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Obama, Biden and Trump stated that the 2002 AUMF supported past attacks in Syria. Biden’s attacks included targets in Iraq and Yemen. Trump also cited the 2002 AUMF in the killing of Iranian General Qassem Soleimani, leader of the Islamic Revolutionary Guard Corps (IRGC) Quds Force.
It was ironic that President Biden relied on the 2002 AUMF (and the 2001 AUMF) for “necessary and proportionate” attacks because he had previously supported repealing the 2002 AUMF.
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The administration is likely to consult with Congress in light of these attacks. Congress may seek to ban or limit operations in the coming days. Given the fluid events, many members are likely to wait to watch the initial results and obviously polls on the attacks. However, these operations can take days or even weeks. The longer the operation continues, the more congressional calls for action will likely grow.
However, in launching major attacks on other countries in the first place, Trump is using the authority that previous presidents, including Democratic presidents, had. History and past precedents are on his side in carrying out these initial attacks.
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