Regardless of whether he orders a strike, we can be confident there will be no new congressional vote on the use of military force.
Regardless of whether he orders a strike, we can be confident there will be no new congressional vote on the use of military force.
A s this is written, President Trump has not authorized a military strike against Iran. He has indicated that two more weeks may elapse before he decides whether to launch such an attack — with the limited objective of destroying Iran’s nuclear weapons program, particularly the deep-underground facility at Fordow. War is unpredictable, though. With Israel and Iran attacking each other, and particularly with the regime in Tehran now hitting a hospital and other civilian targets, timelines can change quickly.
Regardless of whether an American attack has occurred by the time you read this, we can be confident that there will be no new congressional vote on whether to authorize the use of military force against Iran.
I argued earlier this week that President Trump has the legal authority to order an attack in the absence of a new Authorization for Use of Military Force, but that he should seek congressional authorization anyway. To do so would be both good constitutional hygiene and a recognition that popular support for a military mission — which a congressionally approved AUMF signifies — is important to the mission’s success.
I also acknowledged, however, that Trump likes to go it alone. It’s not so much a strategy as a predilection.
The president placed unprecedented reliance on the 1977 International Emergency Economic Powers Act to unilaterally impose tariffs; the appeal of the IEEPA theory is sweeping presidential power — obviating the need to go through laborious steps prescribed in the statutes by which Congress actually authorized presidents to impose tariffs. Trump placed unprecedented reliance on the 1797 Alien Enemy Act to unilaterally order deportations; the appeal of the AEA theory was sweeping presidential power — obviating the need to comply with the due process safeguards Congress wrote into federal immigration law (which are not onerous, even if the Trump administration describes them as Sisyphean). Moreover, the president has issued executive orders announcing sanctions against political foes — orders that function as unconstitutional bills of attainder — because it theoretically empowers him to be legislator, prosecutor, jury, and hanging judge, cutting out the other two branches of government and the procedural restrictions on executive law enforcement.
There are two common threads: Trump chafes at constitutional checks on his power, and the courts have serially swatted the administration down on these initiatives because no one in our system has uncheckable power. It was the principal aim of the Constitution to promote liberty by preventing the accumulation of too much power in one set of hands.
To repeat what I argued in the aforementioned column, Trump has all the legal authority he needs to order an attack on Iran. True, there has been some stirring among members of Congress about the purported need for an Iran-specific AUMF. But let’s face it, that stirring has been minimal: confined mainly to a handful of lawmakers who oppose American intervention and who regard the prospect of an AUMF debate not as good constitutional governance but as a way to forestall a U.S. attack.
In principle, I agree with the originalist constitutional argument eloquently posited by Charles C. W. Cooke (on one of this week’s episodes of The Editors and in a subsequent discussion that Charlie and I had with Rich Lowry): At the time of ratification, it would have been understood that the president needed congressional authorization to take forcible action against a foreign power of the kind Trump is contemplating against Iran.
Nevertheless, not to belabor what I contended in the column, the 2001 (post-9/11) AUMF has been resorted to by every president since its enactment — including Biden, though by then it was over 20 years old — and its invocation in support of a strike on Iran would not be as much of a stretch as some other instances of reliance on it have been. Plus, even setting the AUMF aside, Iran has been attacking U.S. forces and installations through its proxies, the Yemen-based Houthis, as recently as a few weeks ago. Trump responded with devastating bombings in and around Aden; there was no congressional authorization, nor need there have been as the Supreme Court has interpreted the Article II commander in chief power since the Civil War–era Prize Cases. Given that the Houthis attack the United States under the guidance of their sponsors in Tehran, it would be just as legitimate for Trump to use force against Iran as against Yemen.
With all that said, though, and speaking as a supporter of limited U.S. aerial attacks to destroy Iran’s nuclear weapons program, I doubt that this president is thinking about either the 2001 AUMF or the parameters of Article II. The only constitutional check on the use of military force against a hostile foreign power by an American president is Congress. Trump is confident that he has tamed the narrow Republican majorities in the House and Senate. Hence, at least until the midterms, he believes — as to nonjusticiable issues, such as war-making — that his own sensibilities are the only limit on his power. That is a disturbing situation, even if his instincts are as right on Iran as they were wrong on tariffs.
President Trump won’t ask for congressional authorization. Sadly, that is a relief to the people’s representatives in both chambers.
The vast majority of lawmakers split into two camps, neither of which has a political incentive to vindicate congressional war powers.
Democrats, of course, have an Israel problem: The party’s hard-left base has become hostile to the Jewish state — the base includes an Islamist faction that unabashedly supports Israel’s enemies. This puts the diminishing pool of what we like to think of as conventional Democrats (left of center but supportive of national security and our constitutional order) in a bind: No matter how they voted on an Iran AUMF, they would risk alienating an important constituency — either the hard left or Jewish Democrats.
As for Republicans, they have to worry about the MAGA base, which is isolationist, particularly when it comes to the Middle East. Opposition to the post-9/11 “forever wars” (especially Iraq) is MAGA mythos. Republicans overwhelmingly see Iran as a mortal enemy of the United States and are pro-Israel; yet, they are cowed by the Trump-era GOP base.
Now, there are caveats here. With respect to Israel’s war in Gaza, the hard left has been zealously pro-Hamas (they call it “pro-Palestinian”); but there is less enthusiasm for Iran and thus less opposition to Israel’s war against its regime. A big tell: European Union progressives, from whom American Democrats often take their cues, do not rabidly oppose Israel’s war in Iran the way they do its war in Gaza. This is largely explained by (a) Iran’s patent cheating on the nuclear deal negotiated with Obama and Europe (i.e., the mullahs’ hiding weapon development activities from the U.N.’s International Atomic Energy Agency), and (b) Iran’s violations of the Nuclear Non-Proliferation Treaty. The Europeans have staked their shaken credibility on both those arrangements and are duly angry that Iran has embarrassed them. This could give Democrats leeway to vote in favor of military force against Iran — leeway they wouldn’t have if we were talking about an AUMF against Hamas (notwithstanding the dozens of Americans killed and taken hostage in the October 7 atrocities).
For their part, Republicans know that, at bottom, MAGA is Trump. There has been a project, nearly as long-standing as the president’s decade in politics, to conjure up principled intellectual ballast for Trumpian populism, but it’s always been a fool’s errand. Trump is isolationist . . . except when he’s not. He opposes resort to military force . . . except when he doesn’t. Flicking off criticism of the administration’s saber-rattling against Iran by MAGA majordomos Tucker Carlson and Steve Bannon, the president this week declaimed, “I’m the one that decides” what the MAGA slogan, “America First,” means. He’s right about that (even if he’s wrong to insist that “I’m the one that developed ‘America First,’ and . . . the term wasn’t used until I came along”). Reacting, with Iran front of mind, Bannon shrugged, “We don’t like it. In fact, maybe we hate it. But, you know, we’ll get on board.” And they will, at least for Trump himself.
Since there’s less pressure to oppose Israel on Iran than on Gaza, maybe Democrats could bring themselves to vote for an AUMF. And since it’s Trump himself who has set the stage to bomb the Iranian nuclear facilities, maybe wary Republicans would support an AUMF if a vote were forced. But neither group wants to do it. At some point, they figure, the respective partisan bases would hold it against them. Better to lie low in the tall grass.
Although they could probably have rationalized going it alone, both Presidents Bush — 41 and 43 — asked Congress to authorize combat operations against Iraq. The nation was well served by it. It is what should happen in a constitutional system that endows the war power in the legislative branch. And as a practical political matter, if Congress does not scrutinize the executive’s resort to military combat before it commences, the chance that it will do so afterward is remote. Even if the commander in chief’s calculations were wrong, Congress is rarely willing to cut war funding when there are American troops in harm’s way (that is why the Democrats’ turn against the Iraq War was so indecorous).
Alas, here we have a president who resists the idea that he ever needs permission, and a Congress that does not want to be asked. This dysfunction may not hurt us with respect to Iran, but it does not bode well.