If we wish to change the trend, the time to start is now.
If we wish to change the trend, the time to start is now.
W ill we, or won’t we? Once again, the American public is waiting to find out whether the American president will take action that has significant consequences for both the United States and the world. In estimating the likely outcome, we have nothing to go on beyond rumor, instinct, and the occasional executive-branch leak. The debates are internal, the permission is assumed, the factions are invisible to the layman’s eye. Perhaps he’ll do it. Perhaps he won’t. Your guess is as good as mine.
Last time around, the issue was tariffs; this time, it’s an American bombing run on Iran. People of good faith can disagree as to the wisdom of either, but, under our current habits, they cannot expect their concerns to be publicly batted around in a deliberative, representative forum. Over time, that system has been eroded, and, in its place, we have installed an emperor. This will not do.
The idea that Congress ought to play a role in a decision of this magnitude is treated these days as a mere foible. Barack Obama. Joe Biden. Donald Trump. Lyndon Johnson. Harry Truman. It doesn’t matter who is in the White House. The president is the commander in chief, and Congress is feckless. Surely, he gets to decide? When that fails, the sophistry begins. War is not war; it’s “kinetic activity.” Attacks are not attacks; they’re “contingency operations.” Casualties are not casualties; they’re “collateral damage.” And, besides, if you squint at this or that law, and you torture — sorry, enhanced-interrogate — the words into submission, a plausible case can be made that the executive already enjoys the requisite power.
I disagree. On the merits, I have no objection to our helping Israel take out Iran’s nuclear program. I just think doing so would require congressional acquiescence. More important, perhaps: I think that the case against such a requirement is indistinguishable from the case for presidential free rein.
First, let’s examine the threshold question: Would the United States’ bombing Iran — using equipment owned by the United States, delivered by members of the United States military — count as an “act of war”? The answer is quite obviously yes. As a purely categorical matter, if Iran’s military were to enter the United States and drop bombs on it, would we instinctively understand that as a casus belli? That, in my opinion, the United States is a very good country, while Iran is a very bad country, has no bearing on this inquiry. Irrespective of whether it were morally or strategically justified, an attack by the United States on an Iranian military facility would constitute an act of war of the type that, under the plain terms of our Constitution, Congress is compelled to sanction.
Next, we must look at whether congressional authorization for such an act already exists. Absent an imminent, direct attack on the United States or its personnel — that is, absent the sort of already-in-process threat that the commander in chief is permitted to deal with unilaterally under Article II of the Constitution and Article 51 of the U.N. Charter — bombing Iran would reflect a shift in American policy, and not a mere alteration of military tactics within an already extant approach. As far as I can see, there are two arguments in favor of the proposition that the president already possesses the power to strike Iran. The first hinges on the War Powers Act of 1973. The second rests on the two AUMFs that were passed in the aftermath of 9/11. I am persuaded by neither case.
In my view, the War Powers Act of 1973 is extremely constitutionally problematic, in that, whatever its intention may have been at the time of passage, it now serves to imply that the president has carte blanche to do whatever he wishes militarily, anywhere in the world, for a maximum of 90 days (60 days plus 30 days for withdrawal), providing that he notifies Congress within two days. In theory, the act was designed to constrain the executive branch; per its plain terms, it confers no more authority on the White House than it had prior to its enactment. In practice, however, it has been transmuted into a short-term Enabling Act that, by trading legislative approval for a legislative veto, reverses the presumptions that undergird our separation of powers. At present, there exists no Declaration of War or Authorization of Military Force against Iran, and, War Powers Act or no War Powers Act, one of those two items remains necessary before hostilities may begin.
As for the 2001 or 2002 AUMFs: Neither contains any language that warrants conflict with Iran per se, or relates to preventing the development of nuclear weapons, or pertains to the vicious nature of the Iranian regime. The 2001 AUMF enables the use of military force against “those nations, organizations, or persons” who were responsible for 9/11, as well as those that “harbored such organizations or persons.” The 2002 AUMF, meanwhile, enables the use of military force in such cases as it would serve to “defend U.S. national security against the continuing threat posed by Iraq.” Naturally, there is a little leeway in both laws. If, for example, Iran were hiding figures who were responsible for 9/11 at the Fordow nuclear site, the 2001 document might apply. Likewise, if Iran were to move its weapons programs into Iraq, the president would plausibly be authorized to hit it there — just as Trump hit Qasem Soleimani in Baghdad in 2020. But none of that is happening. Instead, Israel is systematically dismantling Iran’s nuclear facilities, and the United States is considering joining in (as opposed to providing weapons or intelligence or defensive capabilities that, thus far, have not reached the level of making war). If, for whatever reason, the United States wishes to expand its current role, it cannot do so on the basis of a couple of stale statutes that do not relate to the task.
I am aware that, if the U.S. does attack Iran, nobody is likely to care too much about these questions of process and law. The popularity — or unpopularity — of such a move would not rely on the means by which it came about. The incentive in Congress is to stay off the record. And the president — like all presidents — benefits politically from those facts. But the Constitution is still in force, and, no amendments to its war-making terms having been made since 1789, it still lays out the process by which military action ought to be approved. If President Trump believes that the United States is likely to be involved in a major war with Iran, he should ask Congress to declare as much. If, as seems more likely, he thinks that the action would be more sporadic, he should ask Congress for a series of piecemeal permission slips, as were granted to Presidents Jefferson and Madison in the First and Second Barbary Wars. It is true that, at various points in American history, presidents have ignored Congress completely and gotten away with it. But that does not make it right for them to do so — and, if we wish to change the trend, the time to start is now.