President Donald Trump’s order to bomb Iran’s nuclear facilities presents a new test of the Constitution and the extent of presidential powers to conduct war despite a lack of congressional approval.
The administration is relying on the president’s authority under Article II of the Constitution, two senior administration officials told CNN, which says he has power to direct US military forces in engagements necessary to advance American national interests abroad. The White House counsel’s office and the Justice Department were both involved in the legal analysis for the strikes. The administration relied, in part, on memos about war powers written by the DOJ’s Office of Legal Counsel under previous administrations of both parties.
“The president is clearly well within his Article II powers here,” one former senior US official told CNN. “End of story.”
But that’s not a view held by many legal experts or universally endorsed by Democratic and Republican lawmakers, who point to the Constitution’s unambiguous statement that only Congress can declare war, the absence of a law akin to the Iraq War-era Authorization for Use of Military Force and — critically — a lack of an imminent threat to the United States.
In 1973, responding to the disastrous war in Vietnam, Congress overrode President Richard Nixon’s veto to pass an important piece of legislation, the War Powers Resolution, that sought to rein in presidents regarding the use of military force.
“This is a large enough scale action that I think it’s likely that it should be considered a war, and not merely a small, severely limited strike. Therefore, it requires congressional authorization,” said Ilya Somin, a law professor at George Mason University and a scholar at the Cato Institute, a libertarian think tank.
“The War Powers Act requires advance consultation with Congress, ‘whenever possible,’ before entering US troops into hostilities,” Somin added. “Here, I think it pretty obviously was possible, and it also pretty obviously wasn’t done.”
The Supreme Court has been generous in approving Trump’s expansive use of power, most notably its immunity ruling last year. That view has also contributed to the analysis, a senior White House official said.
“This isn’t some technical rulemaking,” said Chris Anders, senior counsel at the American Civil Liberties Union. “It literally is one of the enumerated powers” of the Constitution.
In the Federalist Papers, James Madison argued for an exception that’s been hotly discussed since — that the president can use force if needed to “repel a sudden attack on the United States.”
“If applied to Iran,” Anders said, it wouldn’t meet that test. “The use of bombing runs against facilities that have been standing there for years, perhaps decades, and were not about to be part of a sudden attack on the United States.”
A senior Justice Department official said if this conflict continues for an extended period, the administration may have to go to Congress for approval, but maintained that “bombing three nuclear sites” does not rise to the level of needing congressional approval. The official also noted the Trump administration has the support of senior House and Senate leaders.
Previous presidential actions
Democratic and Republican presidents have sidestepped Congress for strikes or military action for decades.
Over the past 40 years, the Article II powers have been used for President George H.W. Bush’s use of force against Panama to overthrow dictator Manuel Noriega, President Barack Obama’s use of air strikes in Libya and Trump’s actions in his first term against Syria and Iran.
“The commander in chief can take actions to protect American interests around the world,” John Bolton, a former Trump national security adviser, told CNN.
“We’ve seen Iran sponsor terrorism in Lebanon in 1983, we’ve seen it help arm militias in Iraq that have killed Americans with RPGs made in Iran,” Bolton said. “They’ve been threatening our forces in the region for years.”
Presidents have relied on a collection of legal experts from a variety of agencies to review their actions. Lawyers from the White House used the group, which included top national security legal experts from the Defense and State departments, the CIA, and the Justice Department’s Office of Legal Counsel and National Security Division, to offer advice to the president before making a major national security decision.
The Trump White House has relied less on those experts than previous administrations, current and former US officials say. His Justice Department has previously broadly embraced the idea of wide presidential power.
“While the United States is not the world’s policeman, as its power has grown, the breadth of its regional interests has expanded and threats to national interests posed by foreign disorder have increased,” the Office of Legal Counsel wrote in 2018 regarding air strikes against Syria.
“He’s basically repeating the abuses of a number of previous administrations, most notably Obama, with the 2011 Libya war,” Somin said. “But the bottom line is that this is a kind of abuse that’s not unprecedented, albeit that doesn’t make it right.”
Who can stop Trump?
Enforcing anything against Trump may be impossible through the legal system, as courts have been skeptical of who has the right to sue him and whether such debates should be left for the political branches to address.
The full House or Senate could in theory challenge Trump in court, as the then-Democratic-led House did during his first term regarding the border wall. But while a top federal appeals court backed the lawsuit based on a dispute over appropriations, it was later vacated as moot.
“This is the basic question of constitutional authority. If they were to bring a lawsuit, the courts would not intervene,” Bolton said. “This is a fight between the two branches.”
Bipartisan concerns, however, won’t move the needle on their own without help from leadership, which is unlikely based on Saturday’s comments from House Speaker Mike Johnson.
“The President fully respects the Article I power of Congress, and tonight’s necessary, limited, and targeted strike follows the history and tradition of similar military actions under presidents of both parties,” Johnson said in a social media post.
Republican Rep. Thomas Massie was taken aback.
“There was no imminent threat to the United States, which was what would authorize that. And I think that’s peculiar to hear that from the speaker of the House,” the Kentucky congressman said on CBS’ “Face the Nation.” “Look, Congress was on vacation last week when all this was happening. We haven’t been briefed. They should have called us all back.”
What would Congress actually do?
Massie and Democratic Rep. Ro Khanna are seeking to reassert Congress’ authority over military action with a co-sponsored war powers resolution. Democratic Sen. Tim Kaine said on “Fox News Sunday” that Senate Minority Leader Chuck Schumer is pushing for a vote “as soon as possible” on a resolution so “all members of the Senate have to declare whether or not the US should be at war with Iran.”
US actions in Iraq and Afghanistan in the 2000s were “at least” debated in Congress at the time with requests from then-President George W. Bush, Massie noted.
“It should have been declarations of war, but at least they did an Authorization of Use of Military Force,” Massie said. “We haven’t had that. This has been turned upside down.”
Some lawmakers and legal experts are looking at the second Iraq War as precedent for congressional action — and also a warning to review the intelligence.
“We are in yellowcake uranium-land,” a former national security official said, referring to botched intelligence that Iraq had weapons of mass destruction. “Congress should be asking questions about what intelligence and what legal findings they did before taking this escalatory action.”
Democratic and Republican administrations have repeatedly stretched the 2002 Authorization for Use of Military Force, which authorized the Iraq War, as legal authority for military action in locations outside of Iraq. An earlier AUMF that authorized action against al Qaeda and associated groups also has been used beyond what was conceived in the post-9/11 era.
“The problem is that, historically, the only meaningful check on presidential abuses of the war powers has been pushback from Congress,” said Stephen Vladeck, CNN legal analyst and professor at Georgetown University Law Center. “But that was when Congress took its constitutional and institutional responsibilities seriously.”
The ACLU’s Anders says there’s still time for Congress to act on a bipartisan basis, suggesting public hearings to air the Trump administration’s military and legal justifications. Congress could also look at restricting funds for such actions without its buy-in.
It’s also a chance for a true national debate.
“One advantage that comes to the executive branch when it goes to Congress and asks for authorization that there’s a clear examination of what the United States is getting into, so there’s much more of a national buy-in,” Anders said.
“That is part of the genius of the way the Constitution was set up.”
CNN’s Zachary Wolf contributed to this report
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