Trump, Congress, and the War Powers Resolution

Two interdependent fears which caused an alarm of the public with regard to the Trump administration implies uncontrolled executive power and the erosion of the rule of law. These concerns have intensified in the debates on the legality of President Trump’s decision to bomb Iranian nuclear installations in the War of Israel against Iran. Members of the two chambers of the Congress had introduced resolutions to try to prevent Trump from taking such a military action without its authorization. But the energy that certain legislators had gathered for a rare attempt to assert the constitutional power of the Congress against Trump seemed to dissipate, at least when they expected a cease-fire between Israel and Iran holding.

We were normally going to turn to the previous ones of the Supreme Court to determine the constitutionality of a presidential action. But no case provides legal responses on the permission of attacks like that on Iran. The only relevant affair of the Date of the Civil War. He indicates that Congress has the sole power to “declare war”, but that, in the event that a foreign nation invades the United States, the authorization of the congress is not necessary and that the constitutional power of the president, because the commander-in-chief is sufficient to take measures. The court noted that the president cannot “initiate war”, but he has never provided a definition of “war”, as opposed to armed conflicts.

The Congress has not officially declared war since the Second World War, but it has sometimes authorized presidents to use military force in familiar conflicts under the name of wars – for example in Vietnam, in the Persian Gulf, in Afghanistan and Iraq. But, when the congress did not give such an authorization, the presidents often turned to the office of the legal advisers of the Ministry of Justice. OLC issues opinions that are not binding, but which try to present legally correct borders that the president should respect. The presidents regularly acted unilaterally to enter significant hostilities on the basis of these opinions, including in the Korean War, Kosovo and Libya.

The Congress, in the resolution of the war powers of 1973 (promulgated on the veto of President Nixon, who thought it of it unconstitutional), aimed to verify the unilateral presidential appeal of the force, demanding, among other things, that the president consults the congress before sending armed forces in hostilities and obtaining the approval of the Congress to deploy troops in the event of a conflict for more than six days. But the democratic and republican presidents did not comply entirely, and the Congress did not do much about it. In recent weeks, some legislators have proposed new resolutions of war powers to prevent Trump from attacking Iran again unless the congress authorizes it, but the chamber president, Mike Johnson, resisted the idea and declared that the existing resolution of war powers was an unconstitutional offense of the president’s power as commander -in -chief.

In recent decades, OLC has produced an opinion after an opinion that has been incredibly expansive with regard to this power. Each armed conflict that a president has undertaken without authorization from Congress has become a precedent which has expanded what the executive power considered constitutionally allowed. This is how we arrived at a situation in which a president can reasonably affirm that it is legal, without the approval of the congress or even the consultation, to drop bunker bombs on a country which has not attacked the United States, one could assume that Trump would not care about a precedent precedent, but in the clear manner that he described the operation in a letter to a congress after the strikes of the past operation. He alluded to the key formulations of the previous opinions of the OLC, declaring that his “discreetly targeted” strikes the nuclear installations of Iran, were “limited in the scope and the objective”, and did not imply the land forces – which means that the operation corresponded to what the OLC said unless the war, so that the authorization of the Congress is not necessary.

Trump’s justifications also reflected the precedents of OLC arguing that a president can unilaterally use military force abroad to pursue “national interests” and “collective self -defense”. The office has largely interpreted “national interests” to include “ensuring food safety and medicine in Somalia”, under the first president Bush; “Help an ally or a strategic partner”, Iraq, under President Obama; And dissuade “the use and proliferation of chemical weapons”, in Syria, during Trump’s first term. And “collective self -defense” can mean not only repel an imminent attack, but also to keep future attacks away and defend the allies.

Jack Goldsmith, a most important expert in war powers and professor at the Harvard Law School, wrote, in October 2023, that under the body of OLC opinions, “almost any imaginable circumstance” in which a president “would think that it is careful to use force in the Middle East” can be justified. The slowdown in Iran’s ability to create nuclear weapons would satisfy the test of “national interests” as well as “the collective self -defense of our ally, Israel”, as Trump said. More recently, Goldsmith achieved the disturbing reality that “there is no constitutional rule that would answer the question” to know if Iran’s strikes were illegal. But some legislators may believe that it is time for Congress to rethink the acceptance of the previous practice of the executive branch as a justification for future unilateral military actions. No less because a report by the disclosed preliminary intelligence agency suggesting, to Trump’s anger, that its attack had “completely and completely erased” the nuclear capacities of Iran, if they were correct, can lead it to think that it is in “the national interest” to try again. (The administration said that it could now limit the information it shares with Congress.)

The courts remain largely away from war debates, because these debates are often deemed to imply political questions rather than legal. So, if the congress persists not to verify the use by the president of the military, or even believes that such checks are unconstitutional, its unilateral power will remain almost unlimited. Before Iran strikes, concerns about Trump and the military focused on his federalization of the California National Guard, which the administration justified the theory that violent incidents among protests protest ICE In Los Angeles, had turned into a “rebellion” against the United States, the ninth circuit found that Trump’s actions were probably in accordance with a status stipulating that the president can take such measures when “incapable of regular forces to execute the laws of the United States”.

We learn that, in the country and abroad, the ability to curb the most dangerously consecutive uses of the presidential power is mainly based on the restraint of the commander -in -chief. The law only obtains us so far, or sometimes, nowhere. ♦