Trump, Congress and War Power Resolution

Two interrelated fears have raised an increasing public alarm about the Trump administration, involving unchecked executive power and erosion of the rule of law. These concerns have exacerbated debates about the legitimacy of President Trump’s decision to bomb Iran’s nuclear facilities in the Israeli-Iran war. Members of both Capitols have proposed resolutions to prevent Trump from taking such military action without authorization. But the energy that some lawmakers have summoned is a rare attempt to argue for Congress’ constitutional power against Trump seems to have disappeared, at least they hope for a ceasefire between Israel and Iran.

Often, people seek the Supreme Court precedent to determine the constitutionality of presidential litigation. However, no case provides legal answers about Iran’s permissiveness to the attack. The only related case in the court can be traced back to the Civil War. It points out that Congress has the only power to “declare war”, but if foreign countries invade the United States, Congress authorization is unnecessary, and the president’s constitutional power is sufficient to act. The court noted that the president could not “start a war”, but it never provided an authoritative definition of “war” rather than armed conflict.

Congress has not formally declared war since World War II, but sometimes authorized the use of military forces in conflicts commonly known as war, for example, in Vietnam, the Persian Gulf, Afghanistan and Iraq. But when Congress has no mandate, the president often turns to the Justice Department’s Legal Counsel’s Office. The opinions issued by the OLC are not binding laws, but attempts to propose legal corrective boundaries that the president should respect. The President regularly takes unilateral action based on these views, including opinions in the Korean War, Kosovo and Libya.

In the 1973 War Powers Resolution (veto power over President Nixon (thinking it was a veto power of a violation agency), Congress aimed at checking the use of force by a unilateral president, among other things, the president consulted Congress before sending hostile force to the armed forces, and obtained Congress approval and approved by Congress to deploy troops in conflict for dates over sixty years old. However, neither Democratic nor Republican presidents fully complied, and Congress did not do much for it. In recent weeks, some lawmakers have proposed new war powers to prevent Trump from attacking Iran again, and House Speaker Mike Johnson boycotted the idea and declared that existing war powers were an unconstitutional tort of the president as commander.

Over the past few decades, the OLC has made an opinion that is extremely large in terms of this power. Every armed conflict the president engages without Congress has become a precedent, further expanding what the executive believes is allowed by the Constitution. This is how we solve the problem that the president can reasonably claim that it is legal, and that without Congress’ approval or even consultation, it is possible to abandon the bunker bomb in a country that has not attacked the United States and attacked the United States. This is what one might think Trump’s description of Congress in his post-strike practice, which he doesn’t care about. He hinted at a key statement of previous OLC opinions, saying his strike “targeted by discrete” Iranian nuclear facilities “limited scope and purpose” and did not involve ground forces, meaning that the OLC’s actions meet the standards stated by the OLC and therefore do not require Congress authorization.

Trump’s reasons also reflect the OLC’s precedent, believing that the president can unilaterally use foreign military forces to pursue “national interests” and “collective self-defense.” The office, under the leadership of the first President Bush, included the “national interest” of “ensure the safe delivery of food and medicine in Somalia”; Iraq under President Obama: “Assisting allies or strategic partners.” During Trump’s first term, the “use and proliferation of chemical weapons” was blocked in Syria. “Collective Self-Defense” not only means repelling an impending attack, but also means avoiding future attacks and defending allies.

Jack Goldsmith, the most important expert in war power and a professor at Harvard Law School, wrote in October 2023 that under the corpse of the OLC opinion, “almost all possible situations”, the president “considered the use of force in the Middle East as cautionary use” could be justified. Reducing Iran’s ability to manufacture nuclear weapons will meet the test of “national interests” and “collective self-defense of our ally Israel,” as Trump said. Recently, Goldsmith argued that the disturbing reality is that “there is no constitutional rule to answer the question”, namely whether the Iranian strike is illegal. However, some lawmakers may think it is time for Congress to reconsider past executive practices as justification for future unilateral military operations. Especially because leaked preliminary defense intelligence reports show that his attacks have not been “completely eliminated” in Iran’s nuclear capabilities, if proven to be correct, could lead him to feel that it is in the “national interest” of another attempt. (The government said it may now limit the intelligence it shares with Congress.)

The courts largely avoided debates about war forces, as these debates are often seen as requiring a policy rather than a legal issue. Therefore, if Congress persists in not checking the President’s use of the military, or even considers such checks unconstitutional, his unilateral power will be almost limitless. Concerns about Trump and the military prior to the Iran strike focused on his federalization of the California National Guard, a theory that the administration has proved by violence among protesters ice In Los Angeles, the Ninth Tour turned into a “rebellion” against the United States, finding that Trump’s actions may be consistent with the provisions that the president may take such steps when “regular forces that cannot enforce American laws.”

We have learned that at home and abroad, the ability to curb the most dangerous outcome uses of presidential power depends primarily on the commander-in-chief’s self-discipline. The law can only make us so far, or sometimes not even anywhere. ♦