Law and Process in the Iran Attack
The war powers law may be "inscrutable," but there is still a constitutional problem with the strikes.
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Jack posted earlier this week a concise analysis of the depressing position that we find ourselves in on presidential war powers. As he has written on prior occasions, presidents may now claim the authority, with the backing of their lawyers, to do as they please with American air and missile might. Congress periodically complains, then quickly vanishes from the playing field.
In reflecting on Jack’s piece, I am focused on his conclusion that the law as it has developed is so “inscrutable” that there is no clear basis for the claim that the Iran strikes are illegal. I think there is such a basis. While I agree with Jack that there is no settled answer that will command expert, much less bipartisan political, agreement, I also believe that some answers are meaningfully better than others. And the better answer here is that this administration proceeded in Iran without regard—and with obvious indifference—to limits on presidential authority.
This is one claim, to which I would add another: Even conceding that the extent of those limits is unclear and contestable, it then matters still more that presidents acknowledge some constraint, that they take the question seriously. Of particular importance to this requirement is good faith engagement with Congress. In the absence of a clear “rule,” this inter-branch process must do much of the work of managing difficult constitutional questions of the executive’s and legislature’s relative roles in war powers. It will not, of course, resolve disagreement about constitutional legal issues. But it does reinforce the basic principle of shared responsibility and allows for Congress in various ways to constructively define and defend its share.
“One Person Decides”
I agree with Jack that presidential claims of what is in effect unfettered legal authority to decide when, how, and where to use force is the outcome of historical practice, supported by aggressive executive branch lawyering, and, for the most part, congressional acquiescence. As he wrote after the strike that killed Qassem Soleimani, we have arrived at the point that “[t]hat is our system: One person decides.”
On the face of it, it cannot be the right constitutional answer. The constitutional text may not supply that answer as needed for all cases—a problem hardly unique to war powers issues. But the current state of affairs is impossible to square with basic constitutional design of (to use the Office of Legal Counsel’s words) “divide[d] authority”—one in which Congress possesses the authority to declare war and raise and support a military. The extreme distortion in that design reflected in historical practice and what passes for congressional “acquiescence” cannot be justified by reference to what executive branch lawyers have concocted in self-serving legal opinions.
What then to make of the constitutional status of the military action in Iran that the president has explicitly referred to as a “war” and announced that “we”—the United States and Israel—are waging? A war in which he demanded the evacuation of the capital and called for the “UNCONDITIONAL SURRENDER” by this enemy? The president has also kept open the objective of “regime change,” threatening the killing of the Iranian head of state, as our ally in this “12 DAY WAR” engaged in wide-ranging attacks on Iranian government as well as military targets.
In Trump’s view, this was a war to which he could commit the country on his say-so, end of story. Whether he did so, and in particular whether the U.S. would bomb nuclear sites, was only for him to decide: “I may do it, I may not do it. I mean, nobody knows what I’m going to do.”
Setting aside these presidential statements of purpose and authority, I do not disagree with Jack that administration lawyers can muster a legal theory to defend this military engagement, and the administration has now provided it. In the 48-hour report “consistent with the War Powers Resolution,” President Trump “informed” Congress that the Iran strikes were taken on the basis of his “constitutional authority as Commander in Chief and Chief Executive” to “advance vital United States national interests, and in collective self-defense of our ally, Israel, by eliminating Iran’s nuclear program,” and to “protect United States citizens both at home and abroad as well as in furtherance of United States national security and foreign policy interests.” He also asserted that the “United States took this necessary and proportionate action consistent with international law.”
These are weak arguments (a conclusion that does not and should not depend on whether the policy of support for Israel in this war is sound, and my discussion here should not be read to imply any such view). But, having been an executive branch lawyer, and one associated with a highly controversial claim of legal authority in the 2011 Libya strikes—an interpretation of the War Powers Resolution that drew sharp criticism at the time from Jack, among others—I recognize the wide range of legal theories available to government counsel who are called on to defend presidential use-of-force decisions. (I provided an account—and defense—of the Libya episode in published reflections on my experience in the White House.) What the president’s lawyers have at their disposal is executive branch precedent developed by their predecessors, in the recent or more distant past, in either the OLC or the Office of White House Counsel, or both. It is not always, but can be, a rigged game of justifications ranging from a capacious authority to construe the “national interest,” or to engage in anticipatory self-defense, or to aid allies at their request (or even without it)—to name but a few. The lawyers have all the argumentative resources they need to support what their bosses may, rightly or wrongly, determine to be matters of keen national interest requiring the deployment of forces.
Those lawyers also know that Congress is all too often glad to leave the executive to sort it out, so that lawmakers can engage later in Monday morning quarterbacking. But the field of action this situation opens up to them only serves to muddy up the constitutional question: It does not help to resolve it. If whatever the executive decides is constitutional, because the lawyers have justifications ready at hand for any such decision, the role of “law” becomes indeed hard to ascertain, but this does not mean that there is no adverse constitutional judgment to be rendered about this state of affairs.
Presidential Responsibility
One commentator, following operations against Syria in Trump 1.0, summed up where all this leaves us, and points in the direction of a critical backstop: presidential responsibility.
Whether Congress and the president believe that congressional authorization is necessary to the use of military force is of the utmost significance. If neither branch of government has any interest in adhering to the constitutional scheme for launching military offenses, then it is reasonable to wonder whether a provision of the constitutional text has been effectively written out of our constitutional practice and what the nature of the replacement constitutional order might be.
The responsible executive at least accepts that the constitutional issues in play are complex and embraces accountability for uses of forces based on this permissive executive branch-generated body of legal opinions. Before deployment, where it is consistent with the nature and execution of the mission, the president consults with Congress in whatever way they can—including seeking statutory use-of-force authorization. Administration officials open themselves to questions after the fact in congressional testimony. They are transparent in some detail about the legal rationale, publishing it for general consideration and debate. No doubt executives will often choose in the face of perceived national and foreign policy imperatives to minimize congressional engagement. But they exhibit a concern for the constitutional question, for use-of-force constraints.
This is not pure show. The application of constitutional principles governing the allocation of “divided authority” must take place within an overall process that presidents have responsibility for, as does Congress. Consultation allows for presidents to provide congressional leadership with a more nuanced, more complete understanding of the interests at play and issues of “nature, scope and duration.” It also sets up after-the-fact accountability through congressional oversight, the consideration of legislation, appropriations decisions, etc. All of this contributes to maintaining some measure of constitutional balance. Commitment to this kind of process operates as a constraint on presidential action other than when action is needed to address a truly immediate and serious threat (missiles in flight), and, even then, engagement with Congress may be tailored in nature and timing to the circumstances.
Skeptics may question whether a Congress with a weak history of defending its constitutional role will respond usefully to this model of the constitutionally responsible and accountable presidency. It is hard to know whether a Congress invited to work and not fight with the president would have its will and hand strengthened. It could hardly do worse under this model. In any event, responsible presidents cannot be accountable for congressional weakness of resolve, only for their own seriousness of purpose in addressing these constitutional questions.
Recent presidents have embraced or declined this commitment to congressional engagement and the acceptance of constraints that it reflects. President George W. Bush and Vice President Dick Cheney made sweeping claims of inherent authority to deploy force in the War on Terror. President Obama pledged to dial them back and, with mixed results, looked to limit the claims of independent authority and enlarge the sphere of action based on congressional authorization. At the same time, neither President Obama’s nor President Biden’s administrations took action to reconsider and withdraw Office of Legal Counsel opinions from the Bush II era that “take an extreme, indefensible view of presidential war powers.” As Jack noted in his post, he and I urged their withdrawal early in the Biden administration and four years passed with no action.
What we have now is a president with little if any interest in limitations on his authority, with seeming pleasure taken in dismissing them (and not only in the area of national security and foreign policy, as the courts now clogged with litigation can attest). In the case of the 12-day war, he made it clear: Only he decides. His administration even made a point of limiting consultation with Congress, largely cutting the opposition party out of the process.
It is not only that the sad state of the law of war powers gives this administration opportunity, as it has other presidents, to act with a smorgasbord of justifications for the use of force abroad. The Iran war suggests that we are not likely to see recognition of any material legal constraint, the key backstop of presidential responsibility, for the next three and a half years. Instead, we are likely to see this kind of presidential celebration of war power and what it suggests about the seriousness of constitutional deliberation and process.
And that cannot be the right constitutional outcome, however inscrutable in many respects the law in this area has become and how difficult and contestable its application may be in particular cases.