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J.D. Tuccille: Trump has a case for war. He should have made it to Congress

Many of us cheer the decapitation of the Islamist regime, but the president is acting outside constitutional and legal boundaries

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Ayatollah Ali Khamenei is now the former supreme leader of Iran and the world is a better place for his absence. Dozens of other figures in Iran’s murderous Islamist regime join him in improving the planetary climate by their removal as the result of a joint American-Israeli attack on Iran. But U.S. lawmakers and the public learned about the conflict after the decision to launch strikes had been made by the Trump administration. U.S. President Donald Trump has followed in the footsteps of too many of his predecessors in committing the country to a military conflict with all the risk that entails without first convincing people of the necessity of such a step or asking Congress for constitutionally required permission.

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“For 47 years, the Iranian regime has chanted ‘Death to America’ and waged an unending campaign of bloodshed and mass murder, targeting the United States, our troops and the innocent people in many, many countries,” President Trump pointed out in justifying the operation. Among the incidents he cited were the 1983 bombing of the U.S. Marine barracks in Beirut by Iranian proxy Hezbollah, the October 7, 2023, Hamas attack on Israel, which Iranian officials helped plan, and the Tehran government’s slaughter of thousands of its own protesting citizens in January. He emphasized that the Islamist government “rejected every opportunity to renounce their nuclear ambitions.”

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These atrocities, and many more, can be attributed to the brutal Iranian regime. But, as bad as they are, they don’t grant an American president the unilateral power to send the military to attack another country. The U.S. Constitution is clear on this point.

While the Constitution designates the president as “Commander in Chief of the Army and Navy of the United States,” that’s subject to the existence of a state of war. Congress alone has the power “To declare War … To raise and support Armies … To provide and maintain a Navy … To make Rules for the Government and Regulation of the land and naval Forces.”

Presidents have long chafed at that division of responsibilities. Many took the ball and ran when it comes to acting as commander in chief — so much so that Congress felt compelled to rein-in the White House over 50 years ago. Over the veto of then-President Richard Nixon, lawmakers passed the War Powers Resolution (often called the War Powers Act) in 1973. It defined the circumstances under which presidents can deploy military forces, requires reports to Congress, and automatically terminates authorization for the use of force after 60 days unless lawmakers authorize further action.

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Importantly, the law specifies that “The constitutional powers of the president as commander-in chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, 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, unless presidents are responding to attacks on the United States, they need specific congressional authorization to engage in hostilities.

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We don’t have wars anymore or so the United Nations tells us. The international talking society banned such unseemly affairs in its 1945 charter, and so we now have police actions, special military operations, bombing campaigns, incursions, and occupations. But we no longer have wars, so the U.S. hasn’t formally declared one since 1942.

U.S. forces have frequently fought anyway, over the decades. Presidents don’t require authorization in case of national emergency. But It’s difficult to argue, 47 years into the mullahs’ reign in Iran, that their awful business as usual is a pressing concern rather than an ongoing problem. Even the possibility of Iran developing nuclear weapons is challenging to frame as an emergency after the at least equally bizarre and bellicose North Korean regime deployed such weapons without drawing U.S. intervention.

Specific statutory authorization, on the other hand, has a history dating at least to 1802. That year, with An Act for the Protection of Commerce of the Commerce and Seamen of the United States, then-President Thomas Jefferson started the process of bringing the Barbary pirates to heel. More recently, the 2001 Authorization for the Use of Military Force became the basis for years of military action “against those nations, organizations, or persons (the president) determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

Needless to say, the Iranian regime’s crimes, no matter how terrible, have nothing to do with the statutory authorizations for military force of the past. Many of us cheer the decapitation of the Islamist regime, but the Trump administration is acting outside constitutional and legal boundaries.

“The Constitution requires a vote, and your Representative needs to be on record as opposing or supporting this war,” warns Rep. Thomas Massie (R-KY). He’s one of several Republicans promising to join with Democrats to force a vote on the ongoing hostilities in the Middle East.

Massie isn’t alone in being blindsided by the don’t-call-it-a-war in the Persian Gulf. A Reuters/Ipsos poll of 1,282 American adults finds that “43 per cent of Americans disapprove of U.S. military strikes against Iran, while 27 per cent approve; about three-in-ten say they are unsure.” That result was predictable. Last week, before bombs started dropping, AP-NORC pollsters reported that, while 80 per cent of respondents were concerned that Iran’s nuclear program threatens the U.S., “most do not trust Donald Trump to make the right decisions about international military action (56 per cent).”

While President Trump isn’t the first White House resident to resist restraints on executive power, presidents run big risks by defying constitutional and legal requirements to act alone. By ignoring the need to persuade Congress and the public of their case for action, they increase the likelihood that their policies will run ahead of public support.

Winning over lawmakers and the people at this point will be a challenge. While casualties have been limited, several servicemembers have lost their lives. Oil prices are spiking and it’s probably going to become more expensive to fill gas tanks and heat homes.

Americans are more likely to be willing to bear such costs if they’re convinced that fighting and related sacrifices are necessary. But that would require the president to acknowledge limits to his power and to seek permission to engage in hostilities. President Trump may win the war abroad but lose it at home.

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