In conflicts like Iran, Congress has ceded war powers to the presidency

As the saber-rattling between Iran and the United States escalates, the constitutional question on many Americans’ minds is: How far can President Trump traverse into war without buy-in from Congress?

Thus far, Trump ordered — and then aborted — a missile strike following Tehran’s takedown of a $100 million U.S. Navy drone, without Congress’s blessing.

More recently, as a second-order reprimand for Iranian provocations, he increased sanctions on Iran’s supreme leader and a handful of military commanders.

Recall, too, that in May 2018, Trump backed out of an Obama-brokered nuclear deal with Iran and five other nations, including China and Russia. Among other things, the deal restricted the amount of nuclear fuel Iran could harbor over the next 15 years. The idea was to stretch out the timeframe in which Iran could realistically build a nuclear bomb. In exchange, Iran won the lifting of certain international sanctions. Trump reinstated sanctions. And here we are.

Regardless of where one stands on the wisdom of Trump’s foreign policy towards Iran, this is an (otherwise rare) area where Trump has not yet pushed the boundaries of presidential power. Those boundaries crumbled long ago.

Under the Constitution, the president is commander-in-chief of the U.S. armed forces, but Congress has the power to declare war, to raise and support armies, to provide for a navy, and to make laws for the armed forces. This division of military power sets up a classic chicken-and-egg problem: Must the president await a congressional declaration of war before he utilizes military force? Or so long as Congress creates an army and a navy, can the president use those forces as he sees fit?

Most scholars believe that the framers of the Constitution believed that the president is empowered to use his powers to repel sudden attacks, but not to affirmatively initiate conflicts. Others argue that the president is the ultimate boss on this question, and that Congress can only ratify his decisions to engage in armed conflict. 

But as a practical matter, Congress hardly declares wars anymore, and the U.S. has semi-permanent military installations all over the globe. Moreover, America coordinates its use of military forces with other nations, so the line between war and diplomacy is a blurry one.

In 1973, Congress passed a statute known as the War Powers Resolution — over President Nixon’s veto — in an effort to claw back its wartime prerogative under the Constitution. Broadly speaking, the law requires that the president consult with Congress before thrusting armed forces into hostilities. The president must also report back to Congress for permission to keep up a war effort. But the statute has not been consistently enforced, and presidents have balked at its constitutionality. In 2002 — in the wake of 9/11 — Congress took a big step in strengthening the president’s hand in this power struggle: It pre-authorized President George W. Bush to use force in Iraq. Bush later launched a pre-emptive war. 

At the end of the day, the president can do what he wants to do with U.S. military forces unless somebody—that is, Congress—stops him. What would that stoppage look like? Well, Congress could pull back on military funding, effectively starving the president’s budget so that he can’t launch attacks even if he wanted to. In the extreme, this option is unworkable, because the president has to be able to respond to immediate threats.

Alternatively, Congress could pass a “we mean it” statute to shore up its war powers again, but without enforcement, such rules are meaningless. We know this from everyday life: Speed limits only matter if you receive a speeding ticket. Same goes for the government. If politicians can get away with things, they get away with things.

As a third option, Congress could go to court and ask a federal judge to order a president to comply with the War Powers Resolution and Article I’s vesting of the power to declare war in the Congress. But a president would be able to muster formidable constitutional arguments in response to such a lawsuit, and a court might refuse to wade into that muck anyway. 

In politics and in wartime, things work best when the various branches of government work together. Presidents have historically checked in with Congress on the use of military force not because they had to, but because they believed it was the better way to go. So far, the typically “my way or the highway” President Trump has been refreshingly inclusive. He invited congressional leaders from both sides to the White House to huddle around whether to go forward with military strikes on Iran, ultimately standing down. 

Let’s hope this way of doing business lasts for a while. A lot depends on it.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published today. Follow her on Twitter @kim_wehle.

This is the fourth piece in a series by Wehle on constitutional literacy. Read her analysis on constitutional literacy, constitutional rights and the country’s crisis of compassion.