Did the Strikes on Iran Violate the Constitution?

Ever since the U.S. attacked Iranian nuclear facilities on Saturday, many pundits have opined that the strikes were unquestionably unconstitutional. Some have even demanded that Trump be impeached as a result. Given that under the Constitution, only Congress has the power to declare war, isn’t this a slam dunk?

Not so fast. The law is much less clear than the pundits would have you believe. National Security law is my area of expertise (with experience as the General Counsel of two military services over the course of seven years). I thought it might be useful to give a primer on how domestic law limits (or does not limit) Presidential use of military force.

For decades, all Presidents have asserted—with support from Department of Justice opinions—that Article II of the U.S. Constitution allows the President to employ military force without prior congressional authorization. As a Department of Justice report done at the request of President Obama explained, Article II military force can be used by the President without congressional authorization as long as the military operation “serve sufficiently important interests to permit the President’s action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations” as long as the military operation’s “anticipated nature, scope, and duration” did not amount to a “war”.

For decades, most Presidents—both Democrats and Republicans alike—have engaged in significant military action without any congressional authorization. The examples are many:

• President Truman initiated military action to defend South Korea without any congressional authorization.

• President Reagan used military force in Lebanon, Grenada and Libya without congressional authorization.

• President Bush invaded Panama (and overthrew that government) without congressional authorization,

• President Clinton ordered heavy bombing raids against Serbian positions in Bosnia without seeking prior authorization from Congress, and engaged in NATO air operations against Serbia to support Kosovo without congressional authorization. He also bombed Al Qaeda targets in Afghanistan and Somalia with out prior authorization. Finally, he sent military forces to Haiti to force a change in the country’s leadership.

• While I was serving as General Counsel of the Air Force, President Obama initiated military action in Libya (which resulted in regime change) without any congressional authorization.

Ironically, some of the most controversial uses of military force since World War II—Vietnam, Afghanistan and Iraq—were done with congressional authorization.

In many of these examples, the Department of Justice’s Office of Legal provided legal opinions that prior congressional authorization was not required. The 2011 OLC Legal Opinion in support of President Obama’s use of military force against Libya is a good example.

It begins with noting the historical precedent for such military force:

Earlier opinions of this Office and other historical precedents establish the framework for our analysis. As we explained in 1992, Attorneys General and this Office “have concluded that the President has the power to commit United States troops abroad,” as well as to “take military action,” “for the purpose of protecting important national interests,” even without specific prior authorization from Congress. Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6, 9 (1992) (“Military Forces in Somalia”). This independent authority of the President, which exists at least insofar as Congress has not specifically restricted it, see Deployment of United States Armed Forces Into Haiti, 18 Op. O.L.C. 173, 176 n.4, 178 (1994) (“Haiti Deployment I”), derives from the President’s “unique responsibility,” as Commander in Chief and Chief Executive, for “foreign and military affairs,” as well as national security. Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993); U.S. Const. art. II, § 1, cl. 1; id. § 2, cl. 2.

The opinion then notes that Congress’ sole right to declare war is “one possible constitutionally based limit” on Presidential power, but argues that “war” does not cover all use of military force:

But the historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates. In our view, determining whether a particular planned engagement constitutes a “war” for constitutional purposes instead requires a fact-specific assessment of the “anticipated nature, scope, and duration” of the planned military operations. Haiti Deployment I, 18 Op. O.L.C. at 179. This standard generally 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.

The opinion then cites previous examples of military actions that did not meet the threshold of war:

• “we concluded in 1994 that a planned deployment of up to 20,000 United States troops to Haiti to oust military leaders and reinstall Haiti’s legitimate government was not a “war” requiring advance congressional approval.”

• “Similarly, a year later we concluded that a proposed deployment of approximately 20,000 ground troops to enforce a peace agreement in Bosnia and Herzegovina also was not a “war,” even though this deployment involved some ‘risk that the United States [would] incur (and inflict) casualties.’”

• “For more than two years preceding this deployment, the United States had undertaken air operations over Bosnia to enforce a UNSC-declared “no-fly zone,” protect United Nations peacekeeping forces, and secure “safe areas” for civilians, including one two-week operation in which NATO attacked hundreds of targets and the United States alone flew over 2300 sorties—all based on the President’s “constitutional authority to conduct the foreign relations of the United States and as Commander in Chief and Chief Executive,” without a declaration of war or other specific prior approval from Congress.”

Based on these examples, OLC opined that the Libya campaign would not be a war, based largely on the fact that it would be limited to air strikes and not the use of ground troops, and did not have aim of regime change:

President Obama determined that the use of force in Libya by the United States would be limited to airstrikes and associated support missions; the President made clear that “[t]he United States is not going to deploy ground troops in Libya.” March 18, 2011 Remarks. The planned operations thus avoided the difficulties of withdrawal and risks of escalation that may attend commitment of ground forces—two factors that this Office has identified as “arguably” indicating “a greater need for approval [from Congress] at the outset,” to avoid creating a situation in which “Congress may be confronted with circumstances in which the exercise of its power to declare war is effectively foreclosed.” Proposed Bosnia Deployment, 19 Op. O.L.C. at 333. Furthermore, also as in prior operations conducted without a declaration of war or other specific authorizing legislation, the anticipated operations here served a “limited mission” and did not “aim at the conquest or occupation of territory.” Id. at 332. . . . Considering the historical practice of even intensive military action—such as the 17-day-long 1995 campaign of NATO airstrikes in Bosnia and some two months of bombing in Yugoslavia in 1999—without specific prior congressional approval, as well as the limited means, objectives, and intended duration of the anticipated operations in Libya, we do not think the “anticipated nature, scope, and duration” of the use of force by the United States in Libya rose to the level of a “war” in the constitutional sense, requiring the President to seek a declaration of war or other prior authorization from Congress.

Once it is released, I fully expect the OLC opinion about the Iranian strikes to follow the reasoning of the Obama-era OLC Libya opinion—stopping Iran’s nuclear program is in the national interests, and as with the Bosnia, Kosovo and Libya campaigns involved only air strikes and no ground forces. It would also note that the mission has a stated limited goal—the destruction of the nuclear facilities—and not the occupation of territory.

As you might expect, this long-line of Presidential assertions of war-making power has been criticized by many scholars and members of Congress. To his great credit, Senator Tim Kaine was as critical of President Obama’s use of military force without congressional authorization as he is now with Trump’s use of military force. Professors Curtis Bradley and Jack Goldsmith (who was head of OLC during the Bush Administration) wrote a persuasive article arguing that the OLC test offers no real limits on the use of force. They are especially critical of OLC’s analysis of when military action involves “war”:

Importantly, as OLC noted in the Syria opinion, only “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period,” are likely to constitute wars that require congressional authorization. Modern presidents, however, rely heavily on drones, manned airstrikes, and other short-term or relatively limited “fire from a distance” as their principal mechanisms for using force abroad. For such actions, the second part of OLC’s framework will not be a source of constraint.

Indeed, the Libya and Syria episodes make clear how extensively a president can use force from the air without requiring congressional authorization under OLC’s nature/scope/duration test, even when these operations potentially have long-term foreign policy consequences or pose risks of escalation. The Libya operation cost more than $1 billion, involved thousands of air sorties, and drove a foreign leader from power. The Syria operation was significantly smaller in scale and duration, but it was potentially more dangerous, and arguably threatened greater escalation, because U.S. troops have had a presence in Syria and Russia is a Syrian ally that also has a presence in Syria. As OLC acknowledges in its Syria opinion, it has “found that previous military deployments did not rise to the level of a war even where the deployment was substantial.” And it reports that when it was asked about the proposed Syria operation, it concluded that the operation fell “far short of the kinds of engagements approved by prior Presidents under Article II.” (Emphasis added.)

So what can be done if we want to limit unilateral use of military action by the President without congressional authorization? The War Powers Act at least theoretically requires congressional action in order for military force to cotinine, but as the Libya opinion itself notes, it does not require congressional action before force is initiated. (And Presidents can sidestep the War Powers Act by arguing that the military action did not constitute hostilities—as President Obama did during the Libya campaign). If Congress wants to act, however, it has tools at its disposal under the War Powers Act. Indeed, Senator Kaine has proposed a resolution terminating the use of military forces against Iran pursuant to the War Powers Act.

And that is the real problem—Congress does not want to act. Decisions about the use of force can all too easily backfire politically. Democrats who supported the authorization of use of force against Iraq took much heat once the war turned out to be unpopular. Sadly, many members of Congress have learned that the safest action is to allow Presidents to act unilaterally—perhaps kibitzing on the sidelines. Only a few leaders—Senator Tim Kaine being the best example—has asserted that Congress must take its war power more seriously.

So what about the courts? Will they intervene? No. As Steve Vladeck notes, beginning with the Vietnam War, “federal courts (and the Supreme Court, in particular) relied upon a host of justiciability rules—especially Article III standing and the political question doctrine—to avoid settling inter-branch disputes over the constitutionality of particular uses of military force.

A principled case can be made that Trump’s use of force against Iran without congressional authorization violated the U.S. Constitution. His use of military force without congressional authority, however, is not out of line with the actions of Presidents of both parties. It is hard to argue that Clinton’s bombing of Serbia for two months without congressional authorization was okay, but a single night of bombing of Iran is not.

Neither Congress nor the courts have shown much willingness to limit Presidential us of force. Jack Goldsmith gave the best summary of the state of play: “But the only opinion about Article II that effectively matters on this question is the Executive branch’s. The Executive branch will decide for itself whether to act unilaterally and neither the People nor the other two branches can do much in advance, at least as a legal matter, to stop it.”

In the end, as with many aspects of Presidential decision, the ultimate remedy may only be at the ballot box.