JONATHAN TURLEY: Trump strikes Iran — precedent and history are on his side
With the launch of attacks on Iran, some have already declared the strikes unconstitutional. That includes the immediate condemnation of Rep. Thomas Massie. The precedent, however, favors the President in this action, though the attack triggers obligations of notice and consultation with Congress.
I am highly sympathetic to those who criticize the failure to seek declarations of war from Congress before carrying out such operations. Indeed, I have represented members of Congress in opposing such wars. We lost. The courts have allowed presidents to order such attacks unilaterally.
Article II, Section 2 of the Constitution states that "the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states." However, the Constitution also expressly states that Congress has the power to declare war under Article I, Section 8, Clause 11.
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Our last declared war was World War II. Since that time, Congress and the courts have allowed for resolutions to supplant the declaration requirement. They have also allowed for unilateral attacks on other nations.
President Trump has referred to this action as a "war" and said that it will not be a limited operation.
The attack will result in calls for compliance with the War Powers Resolution, passed by Congress in 1973.
The resolution requires "in the absence of a declaration of war" that a president report to Congress within 48 hours after introducing United States military forces into hostilities. The WPR mandates that operations must end within 60 days absent congressional approval.
Notably, there was a recent secret briefing of the "Gang of Eight" that may have included a foreshadowing of this operation. Secretary of State Marco Rubio confirmed on Saturday that he has given notice to those senators.
Under the WPR:
"The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations."
The WPR limits such authority to "hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," and can be exercised "only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."
President Trump has cited the documented attacks of Iran and its proxies on U.S. forces and its allies. It is also a state sponsor of terrorism and has continued to seek nuclear weapons in defiance of the demands of the international community. Recently, the International Atomic Energy Agency (IAEA) announced that Iran had again barred it from these sites.
There has historically been deference to presidents exercising such judgments under this vague standard. That was certainly the case with the attacks in Bosnia and Libya under Democratic presidents.
Even with the highly deferential language, presidents have long chaffed at the limitations of WPR. Nixon's veto of the legislation was overridden. Past Democratic and Republican presidents, including Obama, have asserted their inherent authority under Article II to carry out such operations.
There is always a fair amount of hypocrisy in these moments. There was no widespread outcry when Obama attacked Libya, particularly from Democrats. When I represented members to challenge the undeclared war in Libya, Obama (like Trump) dismissed any need to get congressional approval in attacking the capital city of a foreign nation and military sites to force regime change. Figures like then Secretary of State Hillary Clinton were lionized for their tough action in Libya.
Critics can also rely on Authorizations for the Use of Military Force (AUMFs) to assert limits on the president when authorizing limited, defined military actions. Such resolutions date back to the Adams Administration in the Quasi-War with France.
A 2001 AUMF authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." It also authorized presidents to take military action to prevent future acts of terrorism against the United States.
The 2002 AUMF authorizes the President to use "necessary and appropriate" force to "defend the national security of the United States against the continuing threat posed by Iraq." Past presidents have interpreted these AUMFs to extend to new threats and beyond countries like Iraq.
In a 2018 report, the Trump Administration declared that the 2002 AUMF "contains no geographic limitation on where authorized force may be employed."
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Obama, Biden, and Trump have cited the 2002 AUMF as supporting past attacks in Syria. The Biden attacks included targets in Iraq and Yemen. Trump also cited the 2002 AUMF in taking out Iranian Gen. Qassem Soleimani, the leader of the Islamic Revolutionary Guards Corps (IRGC) Quds Force.
President Biden's reliance on the 2002 AUMF (and the 2001 AUMF) for "necessary and proportionate" attacks was ironic since he previously supported rescinding the 2002 AUMF.
The administration is likely to consult with Congress in light of these attacks. Congress can seek to bar or limit operations in the coming days. Given the fluid events, many members are likely to wait to watch the initial results and, frankly, the polling on the attacks. However, these operations could take days or even weeks. The longer the operation continues, the calls for congressional action will likely increase.
As an initial matter, however, Trump is using authority that prior presidents, including Democratic presidents, have cited in carrying out major attacks on other countries. History and prior precedent are on his side in carrying out these initial attacks.