Was Bombing Iran Legal?

NBC News (“Some lawmakers in both parties question the legality of Trump’s Iran strikes“):

Several members of Congress in both parties Saturday questioned the legality of President Donald Trump’s move to launch military strikes on Iran.

While Republican leaders and many rank-and-file members stood by Trump’s decision to bomb Iran’s major nuclear enrichment facilities, at least two GOP lawmakers joined Democrats across the party spectrum in suggesting it was unconstitutional for him to bomb Iran without approval from Congress.

“While President Trump’s decision may prove just, it’s hard to conceive a rationale that’s Constitutional,” Rep. Warren Davidson, R-Ohio, who usually aligns with Trump, said on X. “I look forward to his remarks tonight.”

Rep. Thomas Massie, R-Ky., said in response to Trump’s social media post announcing the strikes: “This is not Constitutional.”

Massie introduced a bipartisan resolution this week seeking to block U.S. military action against Iran “unless explicitly authorized by a declaration of war or specific authorization for use of military force against Iran” passed by Congress.

In brief remarks from the White House on Saturday night, Trump defended the strikes but did not mention the basis of his legal authority to launch them without Congress’ having given him that power.

Sen. Bernie Sanders, I-Vt., reacted in real time during a speech in Tulsa, Oklahoma, slamming Trump’s actions as “grossly unconstitutional.”

“The only entity that can take this country to war is the U.S. Congress. The president does not have the right,” Sanders told the crowd, which broke out in “no more war!” chants.

Some Democrats called it an impeachable offense for the president to bomb Iran without approval from Congress.

Rep. Alexandria Ocasio-Cortez, D-N.Y., said Trump’s move is “absolutely and clearly grounds for impeachment.”

“The President’s disastrous decision to bomb Iran without authorization is a grave violation of the Constitution and Congressional War Powers,” she said on X. “He has impulsively risked launching a war that may ensnare us for generations.”

Rep. Sean Casten, D-Ill., said on social media: “This is not about the merits of Iran’s nuclear program. No president has the authority to bomb another country that does not pose an imminent threat to the US without the approval of Congress. This is an unambiguous impeachable offense.”

Casten called on House Speaker Mike Johnson, R-La., to “grow a spine” and protect the war powers reserved for Congress.

Johnson said Trump respects the Constitution as he sought to lay the groundwork to defend his decision to act unilaterally.

“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,” he said in a statement.

Johnson’s remarks, along with support for Trump’s move offered by Senate Majority Leader John Thune, R-S.D., indicate that Trump may have sufficient political cover to avoid blowback from the Republican-controlled Congress.

House Minority Leader Hakeem Jeffries, D-N.Y., said Trump “failed to seek congressional authorization for the use of military force and risks American entanglement in a potentially disastrous war in the Middle East.” But he stopped short of labeling the military action illegal or unconstitutional.

House Minority Whip Katherine Clark, D-Mass., was more direct on the legal question.

“The power to declare war resides solely with Congress. Donald Trump’s unilateral decision to attack Iran is unauthorized and unconstitutional,” said Clark, the No. 2 Democrat. “In doing so, the President has exposed our military and diplomatic personnel in the region to the risk of further escalation.”

Senate Minority Leader Chuck Schumer, D-N.Y., responded by endorsing a resolution by Sen. Tim Kaine, D-Va., to require congressional approval for Trump to take military action in Iran.

“No president should be allowed to unilaterally march this nation into something as consequential as war with erratic threats and no strategy,” Schumer said in a statement. “We must enforce the War Powers Act, and I’m urging Leader Thune to put it on the Senate floor immediately. I am voting for it and implore all Senators on both sides of the aisle to vote for it.”

The critics are surely right. But this genie has long since been out of the bottle.

There is simply no doubt that the Constitution places the power to declare war in the hands of Congress. The President, the Constitutional commander-in-chief of the armed forces, has the authority to direct the war once it’s authorized. And, it has always been understood that he also has the inherent authority to order the military to respond to armed attacks or similar emergencies.

The Cold War radically changed that balance of power.

For the first time in our history, we maintained a large standing military force during what was ostensibly peacetime. Historically, once a war was over, we reduced the Army to a cadre force that would be augmented by volunteers, conscripts, and state militias if Congress declared war. We did that after World War II, leading to initial disaster in Korea five years later, and have not really done that again since.* Thus, the President no longer has to petition Congress to raise an Army to employ military force.

Relatedly, while not formally at war, we were in a state of permanent tension with an adversary that possessed nuclear weapons. While the President would still need to go to Congress to fight a major war, such as in Korea and Vietnam, the deterrent logic of Mutually Assured Destruction only worked if the President could order massive retaliation against the Soviets within minutes.

Excesses during the Johnson and Nixon administrations ultimately led to the passage of the War Powers Resolution over Nixon’s veto in 1973. It acknowledges all of the above, but sought to limit the President’s power to use military force to situations when imminent danger precludes prior consultation with Congress. It has been observed mostly in the breach.

Given recent leaks that the US intelligence community assessed that Iran was still a long way from having a nuclear weapon, that threshold has not been reached. The President could and likely should have consulted with Congress.

Practically, though, there’s not much Congress can do about it. The Constitutional remedy for Presidents overstepping their authority and stepping on Congress’s prerogatives is impeachment. As we all know, the House has taken that step four times—twice in the first Trump administration. The Senate is now oh-for-four in removing an impeached President. In this instance, there would almost surely not be close to a majority in the House to impeach Trump, much less a supermajority to remove him from office.

While we’re at it, it’s worth noting that this attack was clearly illegal under international law as well. Article 2(4) of the UN Charter declares, “All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” War is permitted only in response to an armed attack against oneself or an ally, unless specifically authorized by the Security Council. Those conditions, rather obviously, have not been met.

As with the violation of the US Constitution and War Powers Resolution, the practical consequences will be nil. Great powers comply with international law when they will.

*We certainly expanded during major wars and significant reductions in force after. Indeed, I personally was forced into civilian life earlier than planned as a result of the post-Cold War drawdown. But we nonetheless maintained one of the largest standing forces on the planet—and almost certainly the most capable—even in those periods.