Democrats have introduced numerous war powers resolutions in Congress, to no avail. They knew, or should have known, that these bills were performative and had no chance of passing, but they did so to appear to be doing something, anything, to address Trump’s war of choice in Iran. Perhaps it made them feel warm and fuzzy, but it had no effect whatsoever.
By the end of this week, however, it will be a different situation. As of this coming Friday, the War Powers Resolution of 1973 kicks in.
If the war continues through Friday without congressional approval, it will clearly be illegal, having passed the 60-day threshold and the 48-hour notice period that the president is given, under the War Powers Resolution of 1973, to conduct this kind of military operation.
Whether you support or oppose this war — or, as Mr. Trump has called it, this “excursion” — time will be up. And it is the obligation of the federal courts to say so.
Calling a war an excursion doesn’t make it any less of a war. Indeed, Trump has called it war when he forgets that he’s not supposed to far more than anything else, not that it matters what Trump remembers or calls it. We’re well past the point where anything Trump says matters much, whether it’s laughably false, patently outrageous or just plain Trumpian incoherence.
But time marches on, and the 60 day window is about to slam shut. As Erwin Chemerinsky notes, it is the obligation of the federal courts to say so.
Despite Mr. Trump’s saying, on Thursday, “Don’t rush me” regarding the war’s timeline, the act requires that the president withdraw our military from participation in hostilities after 60 days unless Congress has declared war, has authorized a 60-day extension or is physically unable to meet as a result of an armed attack against the United States. The president can extend this by 30 days if he certifies to Congress in writing that an “unavoidable military necessity” regarding the safety of our armed forces requires it.
Granted, Trump has no problems declaring or certifying anything that serves his purpose, whether it’s an “emergency” for something that has happened routinely for decades or a war to save the world from the nuclear bomb Iran was about to build any day now, even though Iran’s nuclear program was obliterated in last February’s excursion and there is no evidence that Iran was either about to build the bomb or about to use it against the United States. Unless, of course, you consider Trump claiming so to be evidence of anything beyond Trump’s declaring or certifying anything that serves his purpose.
If the president and Iran’s leaders don’t reach an agreement to end the war before the deadline, every indication is that Mr. Trump and the Republican majorities in the House and Senate will ignore the act. To try to justify continuing the war, there’s a good chance they’ll come up with some new form of legal-sounding double talk. If that’s the case, it will be left to the courts to uphold the law. Suits should be brought, including by service members and by members of Congress, to enforce it.
If the past year has taught us anything, it’s that the Republican majority in Congress will do nothing to stop Trump from doing pretty much anything he wants. Trump and his administration have treated Congress as irrelevant, and Congress has responded in turn by validating Trump’s treatment.
Someone will trot out whatever new talking points serve to mollify the terminally gullible, which will assuredly not include the word Epstein among them, to justify Trump’s perpetuation of the war. This, of course, is good given that Trump’s expectation that Iran would collapse like a cheap Venezuelan suit despite warnings to the contrary failed miserably, and he’s now stuck in the difficult situation of having no plan to extricate the United States from this mess, whether in a worse position than we were beforehand or with any semblance of honor.
But Chemerinsky’s call to the courts to save us rings hollow. Initially, there is the inferior court problem, where the Supreme Court has emasculated the lower courts time and again by issuing rulings on the shadow docket contrary to the orders issued by district courts and affirmed by the circuits. While you and I would never get away with disobeying a federal court order, neither Trump nor his lackies care much about what some federal judge has to say.
By the time the case winds its way to the Supreme Court’s shadow docket, the situation may be very different than it is today in some ways and the same in others. The Strait of Hormuz may still be closed. Iran may be armed with weapons from Russia and China, despite Trump’s assurance that his besties would never do such a thing. At some point, even TACO Trump will be embarrassed by his constant claims of winning the war and Iran’s telling him to get lost. The ground troops are already poised to move, and the arsenal of million dollar bombs will continue to thin until the United States is effectively unarmed.
And there is neither reason to believe the Supreme Court won’t defer to the Executive in times of war (invoking the doctrine of Inter arma enim silent leges), or that Trump won’t ultimately ignore the Court, packed with lunatic leftist radicals whose families should be ashamed of them, should it rule against him, because he’s the savior of America. It’s not that Chemerinsky is wrong, but that reliance on the law, our system of governance, and the Constitution, only matters when the people in charge care enough to comply with it.
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