New take on the White House dilemma: Will Trump strike Iran, and can he?
Potential Military Action Against Iran: Divulgence Regarding Legal Jurisdiction of Presidential Command
The query hanging in the air as President Donald Trump ponders an offensive move against Iran is simple: Will he or won't he? However, there's a pressing question that seems to have slipped under the radar - can he?
Lawmakers from various political spectrums, primarily Democrats at this juncture, have proposed measures to restrict Trump's power to outright attack Iran.
"We shouldn't enter into war without Congressional approval," Sen. Tim Kaine, a Virginia Democrat, stated emphatically to CNN's Jake Tapper on "The Lead" Wednesday.
Kaine has been relentlessly pursuing the repeal of the post-9/11 authorization for the use of military force, a power that presidents from both parties have utilized to launch military strikes.
80-plus Years Since a War Declaration
Strictly speaking, the Constitution suggests Trump, or any president for that matter, should approach Congress for a war declaration prior to initiating an attack on another country. Yet, since World War II, Congress has refrained from officially declaring war, with the U.S. becoming embroiled in numerous conflicts during the interim.
No Authorization for Striking Iran?
Presidents from both political parties have asserted that they don't necessitate Congressional approval to launch strikes. Nevertheless, lengthier wars have been approved via a series of joint resolutions, including the 2001 authorization for the use of military force against any entity involved in the 9/11 terror attacks or future attacks.
Since Iran wasn't connected to the 9/11 attacks, it would be a stretch to argue this vote, more than two decades old, would justify a strike against Iran today. This vote, however, has been employed to justify numerous U.S. military actions in over 15 countries worldwide.
Imminent Threat? Prove it.
The Trump administration claims more recent assessments by U.S. intelligence agencies from earlier this year indicate Iran is not on the verge of acquiring a nuclear weapon. Yet, they argue Iran's proximity to developing a nuclear weapon justifies a more urgent effort to disable its capability, potentially with U.S. bunker-busting bombs. Israel reportedly lacks the capability to penetrate Iran's Fordow nuclear site, a mountain-buried facility.
Congressional Input and the War Powers Resolution
Kaine wants to see more evidence before commitments are made, arguing that acquiring congressional approval would oblige Trump to explain his rationale for an attack. "The last thing we need is to be foolhardily pushed into a Middle East conflict based on findings that may prove incorrect," Kaine noted, hinting at past experiences of immense cost.
In 1973, in response to the disastrous Vietnam War, Congress overrode President Richard Nixon's veto to pass the War Powers Resolution, an attempt to curb presidents regarding the use of military force. The War Powers Resolution seeks to limit a president's authority to deploy the military to three situations:
- A war declaration,
- Specific statutory authorization, or
- A national emergency sparked by an attack on the United States, its territories, or possessions, or its armed forces.
An effort to terminate Iran's nuclear program seems to fall outside these parameters, yet Trump's team of legal experts at the Department of Justice and the Pentagon will likely find ways to justify their actions. The law also demands Trump to furnish a report to Congress within 48 hours of deploying military force, as well as limit the time he can use force before seeking permission from Congress.
Rep. Thomas Massie, a Kentucky Republican, and Rep. Ro Khanna, a California Democrat, reference the War Powers Resolution in their proposal to bar Trump from launching strikes against Iran without congressional approval or in retaliation to an attack. "This isn't our war," Massie stated. "Even if it were, Congress must decide such matters according to our Constitution."
A President's Claimed Autonomy
Nixon strongly objected to the War Powers Resolution, and subsequent presidents from both parties have shared his skepticism. For example, when Trump ordered the killing of a high-ranking Iranian general visiting Iraq in 2020, lawyers from the Department of Justice's Office of Legal Counsel argued the president inherently had the authority to authorize the strike under the Constitution if he deemed it was in the national interest.
Presidents frequently carry out air strikes without congressional approval, and the killing of the Iranian general and a similar memo justifying airstrikes in Syria during Trump's first term illustrate this pattern. The "national interest" test appears to provide a wide berth, which seems inconsistent with the idea in the Constitution that Congress is supposed to declare war.
The memo supporting the killing of the Iranian general suggests Congress can control the president through the power to cut off funding for operations and by requiring the president to seek congressional approval before engaging in lengthier conflicts that would be considered war. However, the War Powers Resolution stipulates the president must consult with Congress, a term that can be open to multiple interpretations.
The most direct way for Congress to restrict a president's actions would be through the power to cut off funds, although achieving this in the current climate, with the House and Senate controlled by Republicans, seems improbable.
[1] War Powers Resolution of 1973[2] Representative Thomas Massie and Representative Ro Khanna[3] Jack Goldsmith and Curtis Bradley on Lawfare[4] Brian Egan and Tess Bridgeman on Just Security
- In response to the potential escalation of war-and-conflicts with Iran, lawmakers have proposed policy-and-legislation, such as the War Powers Resolution of 1973, to restrict President Trump's authority to launch attacks without Congressional approval.
- Senator Tim Kaine, a prominent Democrat, has made it clear that he believes a president, in this case Trump, should not enter into any war without the approval of Congress, as per the Constitution, emphasizing the importance of general-news and discussions on politics in ensuring accountability and protection of national interests.
