Trump’s Iran Air Strikes and the Constitution
Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump’s illegal actions has beneficial consequences.
Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump’s air strikes violate the Constitution:
My longstanding view, developed in a series of articles, is that the Constitution’s original meaning requires Congress to approve any material initiation of military hostilities by the United States. As explained at length in Textualism and War Powers, that conclusion rests principally on two points:
(1) the original meaning of “declare” war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war. In the eighteenth-century sense, war could be “declared” by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action — a point noted by Hamilton in The Federalist).
As a result, the Constitution’s assignment to Congress of the power to “declare” war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force. A wide range of leading members of the founding generation — including Washington, Hamilton, Madison, and James Wilson — described Congress’ power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).
(2) the original meaning of “war” broadly included most uses of sovereign military force, including ones with limited scope and objectives. An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war — both of which came within Congress’ war power. The Bas case involved the so-called “Quasi-War” between the U.S. and France in the late 1790s, which consisted only of naval engagements. Notably, essentially everyone at the time — including advocates of presidential power such as Hamilton and President John Adams — thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).
Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval. The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome. Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war). And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress’ approval under the Constitution’s declare war clause.
As Ramsey notes, there is an argument that relatively small-scale military actions don’t qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn’t apply here. The objective of these st
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