United States Constitution

Article I, Section 8, Clause 11

The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Over the past few decades, presidents have flexed their military muscle. Some in response to acts against the United States or its allies. Some in discrete, one-shot actions like Trump’s bombing of Iran’s nuclear facilities that obliterated its nuclear weapons capacity or his invasion of Venezuela to seize its president and rendition him back to America.

But yesterday, a president, without either a precipitating event, an imminent threat or the authorization of Congress, went to war. He explained, to the extent he offers any explanation, why in an eight minute video. It consisted of empty rhetoric of some unspecified imminent threat for a vague purpose of regime change, possibly nuclear threat despite the earlier claim that this had already been obliterated, without any actual plan of what was to become of Iran.

At least it was the Islamic Republic of Iran, a regime no one should shed a tear for. Its leader, Ayatollah Ali Khamenei, has been killed. Who will follow him remains to be seen. Perhaps the next regime will be better. Perhaps not. It was a rogue, violent nation, both to its own people and to others, especially Americans, abroad. If a bad thing had to happen, it couldn’t have happened to a country more deserving.

Regardless, was this a lawful exercise of presidential power? David French puts a pin in the facile claim that presidents have been doing this for decades without regard to the constitutional requirement that only Congress can declare war.

Don’t let anyone tell you that modern presidents simply don’t go to Congress, that we’re trying to impose a standard on Trump that we didn’t impose on anyone else. In 2002 the Department of Justice told President George W. Bush that he had “ sufficient constitutional and statutory authority to use force against Iraq,” even in the absence of a direct congressional authorization or a new U.N. Security Council resolution. Yet Bush pressed for (and obtained) an authorization and a resolution anyway, just as his father did when he went to war with Saddam Hussein during Operation Desert Storm.

In ascertaining the scope of lawful authority, presidents turn to the Office of Legal Counsel at the Department of Justice. As David notes, OLC issued an opinion that President Bush had the authority to go to war without congressional approval. The OLC tends to be extremely deferential to presidential power. Harvard law prof Jack Goldsmith argues that the limits of law, of the Constitution, are no longer relevant.

As I’ve been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people. They have occasionally risen up to constrain the president’s deployment of troops and uses of force—for example, in Vietnam, and in Lebanon in 1983, and in Somalia in 1993. But those actions are rare and tend only to happen once there is disaster.

The Office of Legal Counsel opinions on the presidential use of force are famously promiscuously permissive. Some will now invoke the single acknowledged OLC limitation on unilateral uses of force to criticize the Iran attack. As the opinion justifying the attack on ISIS in 2014 explained: If the “‘anticipated nature, scope, and duration‘ of the planned military operations, analyzed in light of the applicable historical precedent” amount to “war,” the president must secure prior congressional approval.

Initially, it is important to recognize that the OLC, of which Goldsmith was once chief, is not a court, but merely an internal DoJ office. Its opinions are supposedly conclusive for the executive branch, though carry no precedential weight otherwise. It basically makes up opinions, such as torture is fine, to provide cover to the president.

Here, the catchphrase is the “anticipated nature, scope and duration” that distinguishes war from an isolated military action. The former requires congressional approval. The latter does not. It has the imprimatur of a difference without providing much of a distinction. Does it matter if it is anticipated that the war will be over in a week when it ultimately takes years? Where is the line? Who knows?

President Trump in his statement about the attack said: “The lives of courageous American heroes may be lost, and we may have casualties,” and that “that often happens in war.” Does that implicate the OLC limitation and require him to seek congressional approval? It would be very easy for OLC to conclude not.

First, I am not aware of any episode in which this standard was invoked to deny the president the authority to use force. It has been mentioned only in opinions justifying force and it has been fudged in various ways.

Second, OLC made clear in its Libya opinion that the “anticipated nature, scope and duration” test “will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” (Emphasis added.)

But the most significant point Goldsmith makes is that courts have been highly reluctant to get involved in such matters as defining war.

As I’ve been saying for a while, there are no effective legal limitations within the executive branch. And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people.

Will this Congress do anything? It’s shown remarkable disinterest in constraining Trump in any action, no less one as serious as war. As for the American people, it would appear there is little appetite for constraining Trump given how much we despise Iran and the vast harm its done to the United States and the world. That does not mean that Trump has the authority to declare war at will, but that the military followed his orders and, lawful or not, we are at war because Trump decided to go to war.

Inter arma enim silent leges.

Someday, there may be robust debate about the propriety of Trump declaring war on Iran. But today is not that day. I pray that few are harmed, it’s over swiftly and that the next regime is better than the last. I fear that this will not turn out well.