


President Donald Trump on Saturday night entered the U.S. into Israel’s war against Iran. If everything goes according to plan, we’re done after this bombing raid — Israel can do the mop-up work, and Iran won’t retaliate against the U.S.
Whatever comes after Trump’s acts of war against Iran, we ought to also talk about what happened before — or what didn’t happen. Trump, in his very public deliberations over whether or not to deploy the U.S. military against Iran, never once asked for or received authorization from Congress.
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Most probably don’t understand why the president ever would ask Congress for approval, because for decades, the president has taken war powers away from Congress, and Congress has been happy to abdicate its war powers. But still, the Constitution and federal statute are clear: The president needs Congress’s authorization — as in a resolution that passes both chambers — before he can enter into a war.
There is no special 60-days-of-free-war clause. There is, instead, a right of the president to respond quickly to a sudden attack by the other side. It would take quite the stretch to apply this to an attack on Iran.
Let’s start with the Constitution:
Article I, Section 8, of the Constitution enumerates Congress’s powers: “The Congress shall have Power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water….”
Article II, Section II, establishes that “The President shall be Commander in Chief of the Army and Navy of the United States….”
It’s quite clear that the president’s job is to carry out the wars Congress has told him to carry out.
But implicitly, the U.S. military has the right to repel or, in some limited way, respond to a surprise attack on the U.S. Congress. In the Vietnam Era, it acted to make that implicit right explicit, and to draw its limits, with the War Powers Act.
The relevant portion of the War Powers Act reads this:
“The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities … are 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.”
That is, the president can only make acts of war in one of the three circumstances described above. That’s where the 60 days come into play. If the president enters into an emergency war, he needs to get congressional approval within 60 days. But he cannot legally go to war except in one of those three enumerated cases.
Cases (1) and (2) require acts of Congress. In this case, that would be a declaration of war against Iran, or a resolution authorizing the president to, say, aid Israel in its war, or strike at Iran’s nuclear facilities. Obviously, Congress never declared war on Iran.
Congress has also never passed any authorization to bomb or attack Iran. Some argue that the post-Sept. 11 Authorization of Use of Military Force covers Iran 24 years later. That’s a stretch. That AUMF was quite obviously about destroying al Qaeda.
So what’s left is case (3) the emergency response. Think about this war with Iran. In what way is there “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Yes, Iran and its proxies have attacked American armed forces, and Trump mentioned that in his remarks on Saturday night.
“For 40 years, Iran has been saying ‘Death to America, death to Israel.’ They have been killing our people, blowing off their arms, blowing off their legs, with roadside bombs. That was their specialty. We lost over 1,000 people and hundreds of thousands throughout the Middle East, and around the world have died as a direct result of their hate in particular.”
Trump’s (a) reference to Iraq and (b) mention of 40 years make it clear that Iran’s attacks on us are not an emergency, but a chronic situation — the sort of ongoing slow-burning problem that would give the president the opportunity to ask Congress for an authorization.
That’s the key here. The president only has unilateral war powers when there is an emergency — and only some emergencies qualify.
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House Speaker Mike Johnson tried to shoehorn this war into the “emergency” exception, but he seemed to be referring to the emergency created by Israel’s attack on Iran: We might have a small window of time in which to inflict massive damage on Iran’s nuclear program.
Again, that might be a great reason to start a war with Iran, but then Johnson could have introduced a new AUMF. The emergency that Johnson implies is not an emergency “created by an attack” on the U.S., and so that purported emergency doesn’t give the president the right to make war without congressional authorization.