When you bomb a country and take out its leader, that is an act of war.
Under the US Constitution, the US Congress must declare war or otherwise authorize the use of force before the president may take such action. It does not matter whether it is Iran, where the joint US-Israeli attacks that killed Iranian supreme leader Ayatollah Ali Khamenei have already led to retaliation; Venezuela, where the administration of US President Donald Trump in January grabbed deposed Venezuelan president Nicolas Maduro; or Libya, where former US president Barack Obama’s administration in 2011 participated in a bombing campaign that led to the removal of late Libyan leader Muammar Qaddafi.
It does not matter whether the ruler is morally repugnant or a confirmed lifelong enemy of the US. It is still a war for purposes of the US Constitution, not to mention international law.
When the constitution was written, Congress had not only the legal authority, but also the power to ensure that the president did not initiate a war without its authorization. There was no standing army, so it had to raise and fund one. Congress also controlled the power of the purse, and no fighting could go on for long without a specific appropriation of funds.
In the modern world, as it emerged in the wake of World War II, presidents have access to the world’s most lethal arsenal and considerable military forces. A president who chooses to start a war without Congress’ say-so can often get away with it.
The tool that Congress created to constrain the president’s war-making authority is the War Powers Resolution of 1973, passed after then-US president Richard Nixon illegally bombed Cambodia and Laos, considerably expanding the scope of the Vietnam War without authority from Congress. The resolution requires the president to notify Congress within 48 hours of engaging in hostilities and then gives him 60 days to continue military operations. If Congress fails to authorize the use of force within that time, or if Congress, during that time, enacts a resolution blocking the action, the hostilities become formally unlawful.
Democrats are now considering trying to pass exactly such a resolution in the US House of Representatives regarding the war in Iran. Even if that passes, Trump would not sign it. The days when Congress could pass the War Powers Resolution over Nixon’s veto seem like a relic of a remote past — because they are.
Presidents can also get away with ignoring the War Powers Resolution altogether. In 1999, then-US president Bill Clinton continued bombing Kosovo for two weeks after the 60-day period had expired without securing congressional authorization.
More egregiously, Obama’s administration took the legal position that bombing Libya did not count as hostilities for purposes of the War Powers Resolution because the mission was “limited,” the attacks came from the air and so “exposure of US forces [was] limited.” Thus, “the risk of escalation” was limited, too.
That was the US Department of State’s view under Hillary Clinton. It contradicted the views of the Office of Legal Counsel at the US Department of Justice and those of the US Department of Defense.
Obama’s adoption of that legal theory opened the door for any president to engage in acts of war conducted from the air and claim that the War Powers Resolution does not apply — in other words, unilateral presidential war-making became de facto legal under the Obama position.
Trump’s Iran attack shows exactly why that was such a historic mistake. Regardless of whether the current war with Iran lasts more than 60 days, it is certainly a war. Regardless of whether it was a good idea, the Constitution requires Congress to be involved.
The problem is perhaps clearer now, at least to Democrats, because Trump has done more than any other president in history to make Congress irrelevant and govern without regard to law.
However, the problem was already in place before Trump. The legality of a presidentially ordered attack cannot depend on whether the Iranian regime collapses, as Qaddafi’s did, or manages to persist and fight an extended war against the US, as Iran’s might. Nor can it rest on the supposed invulnerability of US forces, who are certainly in harm’s way now. War must be understood to mean war. Hostilities must be understood to mean hostilities.
To be clear, Congress should try to pass a War Powers Resolution, even if that effort turns out to be largely symbolic. It is all that remains of Congress’ power to declare war. That power was fundamental to the framers’ conception of a constitutional republic. Its loss changes the balance of powers within the constitutional order — and not for the better.
Noah Feldman is a Bloomberg Opinion columnist, a professor of law at Harvard University and the author, most recently, of To Be a Jew Today: A New Guide to God, Israel, and the Jewish People. This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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