President Trump’s war with Iran is almost certainly illegal: Congress hasn’t declared war or authorized it by statute, and it wasn’t precipitated by an imminent attack or a national emergency. If the war continues through Friday without congressional approval, it will clearly be illegal, having passed the 60-day threshold and the 48-hour notice period that the president is given, under the War Powers Resolution of 1973, to conduct this kind of military operation.
Whether you support or oppose this war — or, as Mr. Trump has called it, this “excursion” — time will be up. And it is the obligation of the federal courts to say so.
The resolution, often called the War Powers Act, was adopted during the Vietnam War. It applies when American troops are engaged in hostilities or in situations in which hostilities are impending — such as during this war with Iran.
Despite Mr. Trump’s saying, on Thursday, “Don’t rush me” regarding the war’s timeline, the act requires that the president withdraw our military from participation in hostilities after 60 days unless Congress has declared war, has authorized a 60-day extension or is physically unable to meet as a result of an armed attack against the United States. The president can extend this by 30 days if he certifies to Congress in writing that an “unavoidable military necessity” regarding the safety of our armed forces requires it.
The Iran war began on Feb. 28. For these purposes, the clock started running on March 2, when the president formally notified Congress of his military action against Iran. Congress has not declared war or done anything to authorize the war, and its refusal to do so in no way constitutes the requisite approval to continue the conflict — the War Powers Resolution doesn’t come with a check box for opting out.
If the president and Iran’s leaders don’t reach an agreement to end the war before the deadline, every indication is that Mr. Trump and the Republican majorities in the House and Senate will ignore the act. To try to justify continuing the war, there’s a good chance they’ll come up with some new form of legal-sounding double talk. If that’s the case, it will be left to the courts to uphold the law. Suits should be brought, including by service members and by members of Congress, to enforce it.
Unfortunately, recent efforts to enforce the act have been dismissed by the courts as involving political questions that they cannot decide. For example, in Crockett v. Reagan, in 1982, a Federal District Court dismissed a lawsuit by members of Congress that challenged U.S. military assistance to El Salvador. In Doe v. Bush, in 2002, a Federal District Court dismissed a suit to enjoin President George W. Bush from invading Iraq. The court said that the issues raised were political questions “beyond the authority of a federal court to resolve.” Kucinich v. Obama, in 2011, challenged America’s military actions in Libya as violating the act and the Constitution. A Federal District Court dismissed the case.
These decisions make meaningless Congress’s war powers. In the face of congressional inaction, and without judicial enforcement, there are realistically no checks on the president’s ability to unilaterally wage war. If the federal judiciary, up to and including the Supreme Court, won’t uphold its responsibility here, it will nullify our Constitution’s design that two branches of government should be involved when our country goes to war.
The courts haven’t always been so reluctant. The Supreme Court decided several cases arising from the Quasi War, an undeclared naval war with France between 1798 and 1800: In Talbot v. Seeman (1801), the court emphasized the importance of Congress’s involvement in any type of war. Chief Justice John Marshall wrote that the “whole powers of war” were vested in Congress. In Little v. Barreme (1804), the court held that even during wartime the president cannot authorize actions that violate acts of Congress.
In the Prize Cases, the Supreme Court considered the constitutionality of Abraham Lincoln’s blockading Southern ports in 1861. In a narrow 5-to-4 decision, the court ruled that although the president cannot initiate war, as the commander in chief he could meet an armed rebellion with force. It did not, however, question its own authority to rule on a president’s war powers.
The notion that courts cannot enforce constitutional and statutory provisions concerning war powers has no historical foundation. Nor is there any basis for arguing that the War Powers Resolution is unconstitutional as an infringement of the president’s powers as the commander in chief. Article I, Section 8 of the Constitution grants Congress the power “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” That last phrase has immediate and obvious relevance when it comes to our military blockading or boarding ships in the Strait of Hormuz.
The Constitution’s framers unquestionably intended that the power to use military force lay with Congress. During his presidency, George Washington wrote: “The Constitution vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
Yes, presidents control the execution of wars, but they don’t decide whether to take the country to war. While in Congress, James Madison wrote: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued or concluded.”
The courts should simply hold that the War Powers Resolution requires the president to end our involvement in the war with Iran unless and until Congress authorizes it. This shouldn’t be — and isn’t — different than any other injunction on any administration to comply with the law. Mr. Trump might disregard such an order. But that isn’t a reason for the federal judiciary to abandon its duty to enforce the law.
Erwin Chemerinsky is the dean of the law school and a professor of law at the University of California, Berkeley. His books include “No Democracy Lasts Forever: How the Constitution Threatens the United States.”
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