President Donald Trump was on solid legal ground in the military strike against Iran’s nuclear facilities.
Not only did he not need congressional approval to carry out the mission, but his actions were consistent with presidential practice going back decades. Presidents of both parties have authorized the use of the armed forces for military actions, many of which were far more extensive than Operation Midnight Hammer.
Declare War Clause Primer
The Constitution’s allocation of war powers between the legislative and executive branches is a classic example of the separation of powers. The Congress has the power to declare war but cannot fight the war on its own.
The president, as commander in chief of the armed services, has (and has uniformly claimed) the authority to use military forces abroad in the absence of specific prior congressional approval.
This authority derives from his constitutional responsibility as commander in chief and chief executive for foreign and military affairs. Without money from Congress, however, the president has no ability to fight those conflicts, nor does he have the authority to appropriate funds to pay for those military conflicts on his own.
This tension between the legislative and executive branches was purposeful, as the Founders anticipated the grave significance of our country going to war. The United States was born of war, and the Founders knew that in the likely event the country would have to engage in future wars, the decision to take the country to war should be allocated between two coequal branches of government.
Like many other provisions in the Constitution, the Declare War Clause is brief. It authorizes Congress “to declare war.”
The Constitution does not dictate how or when Congress should declare war, just that it has the authority to declare war.
The president, on the other hand, “shall be Commander in Chief of the Army and Navy of the United States.”
There is one, and only one, commander in chief of the armed forces, and he enjoys capacious authority to defend the nation.
In the history of the United States, Congress has declared war 11 times relating to five different wars. Congress has also adopted over 40 authorizations for the use of military force, called AUMFs, including the 1991 Gulf War, the 2001 AUMF after the attacks of 9/11, and the 2002 AUMF to remove the threat of Iraq.
Each of those AUMF’s remains on the books even though the object and purpose of the 1991 AUMF, and arguably the 2002 AUMF, were accomplished years ago.
That is why we have called on Congress to repeal those AUMFs as a matter of congressional hygiene.
War Powers Resolution Confusion
The War Powers Resolution, enacted in 1973, purports to limit the ability of presidents to use the armed forces of the United States on his own accord. The statute authorizes the president to use the armed forces only pursuant to a (1) declaration of war or (2) statutory authorization (i.e., an AUMF) or (3) a national emergency caused by “an attack against the United States, its territories or possessions, or its armed forces.”
The War Powers Resolution requires that once the armed forces of the United States are introduced into hostilities, the president must terminate the use of those forces within 60 days (which can be extended to 90 days) unless the Congress has “enacted specific authorization for such use.”
Here’s the rub: the Department of Justice, under both Democratic and Republican administrations since 1973, have opined via memos from the Office of Legal Counsel (OLC) that the president has independent power derived under Article II of the Constitution to use the armed forces of the United States to serve “important national interests,” as long as the “nature, scope and duration” of the military action does not rise to the “level of a war.”
Historical Practice–They All Did It
There are scores of examples of the president using the armed forces of the United States without seeking prior congressional approval.
In 1994, the Clinton Justice Department concluded as a matter of domestic and international law that President Bill Clinton possessed the legal authority to deploy the U.S. military into Haiti and that he did not need to seek prior authorization from Congress to do so. Operation Uphold Democracy involved an invasion force including the Navy, Coast Guard, Air Force, the 75th Ranger Regiment, 3rd Special Forces Group, and others.
In 1995, Clinton’s Justice Department concluded as a matter of domestic and international law that the president could, acting without specific statutory authorization, lawfully introduce ground forces into Bosnia and Herzegovina to help NATO ensure compliance with a peace treaty. Approximately 20,000 United States military personnel were involved in the operation to enforce the Dayton Peace Accords.
In 2011, the Obama Justice Department concluded as a matter of domestic and international law that the president had the constitutional authority to direct the use of the armed forces in Libya because he “could reasonably determine that such use of force was in the national interest.” The Office of Legal Counsel concluded that “prior congressional approval was not constitutionally required.” Operation Odyssey Dawn in Libya involved the Navy, Air Force, and other elements of the military and intelligence services and included the use of tens of thousands of bombs.
When asked whether President Barack Obama didn’t need congressional authorization to commence hostilities in Libya or continue to carry them on, then-Speaker of the House Nancy Pelosi said “yes,” signaling that he didn’t need Congress’ authorization.
Similarly, in 2018, the Trump Justice Department concluded as a matter of domestic and international law that the president had the constitutional authority to launch airstrikes against chemical weapons facilities in Syria “because he had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.” The Office of Legal Counsel opined that the president could do so without seeking congressional approval and that his actions were based on “deeply rooted historical practice.”
Operation Midnight Hammer
It’s important to view Operation Midnight Hammer in context.
During the118th Congress, the House passed House Resolution 559, declaring that it is the policy of the United States that a nuclear Islamic Republic of Iran is not acceptable. It passed 354-53.
On June 16 the leaders of the G7 reiterated their commitment to peace and stability in the Middle East, affirmed the right of Israel to defend itself, noted that Iran is “the principal source of regional instability and terror,” and that “Iran can never have a nuclear weapon.
These statements are not surprising. The Islamic Republic of Iran has been at war with the U.S. since 1979. In the past forty-six years, the regime has killed, maimed, kidnapped, and otherwise terrorized thousands of Americans. It has built a terror empire across the Middle East, represented by proxy organizations in Syria, Lebanon, Yemen, Iraq, the Gaza Strip, Judea, and Samaria.
During the Second Gulf War, Iran-backed terrorist organizations were responsible for 17% (over 600) of American combat deaths. Another Iranian proxy–Hamas in the Gaza Strip–kidnapped or killed over forty Americans during the Oct. 7, 2023, massacre. For this reason, it is unacceptable for the Iranian regime to have a nuclear weapon that they might use or share with their proxies against American interests.
Upon taking office, Trump inherited an Iran in a far more advanced stage of progress toward a nuclear weapon than he had passed to his predecessor in 2021. First, he reinstituted the maximum economic pressure campaign from his first administration. In mid-April, he offered a 60-day window to the Iranians for negotiations over the future of their nuclear program.
Despite mixed messages from members of his administration, the president maintained a “zero enrichment” policy–consistent with his position from his first administration–committing the U.S. government to ensuring that Iran will never develop nuclear weapons.
The Iranians apparently viewed this offer as an opportunity to draw the United States into another fruitless pursuit of a diplomatic settlement featuring endless rounds of negotiation. Since Israel’s October response strike, Iran has been at its weakest point and sought time to reconstitute its proxy network and rebuild its missile production capacity while continuing to expand its nuclear activity.
On June 12 the IAEA declared that Iran was in breach of its nonproliferation obligations.
Compared to the Clinton, Obama, and Trump Syria actions listed above, which involved hundreds, if not thousands, of U.S. military forces, Operation Midnight Hammer was minuscule by comparison. It involved a handful of sophisticated aircraft and less than three dozen bombs in total. There were no ground forces used, and the operation, from beginning to end, was less than a day.
The goal of the operation was not regime change, but rather to reduce or destroy the threat of a nuclear armed Iran. The strike on the nuclear facilities appears, at this point, to have been highly successful and accomplished the narrow goal but noble goal: to eliminate, for the time being if not forever, Iran’s ability to manufacture and use a nuclear weapon.
In summary, prior congressional approval was not constitutionally required to use military force in Operation Midnight Hammer. Furthermore, Trump’s actions were consistent with the requirements of the War Powers Resolution as he provided appropriate notification of the operation to the Congress.