The Iran War and the War Powers Debate (Part 1)

Stephen Griffin

President Trump’s February decision to go to war with Iran has produced a negative reaction in Congress and inspired another round in the war powers debate among pundits and legal commentators.  Once again, probably more heat has been generated than light.  In particular, there is so much emphasis on whether and to what extent Congress has a role under the Constitution that the issue of why Congress has a role gets short shrift.  It is as if the commentariat is looking for Congress to simply punch a ticket rather than make a substantive decision.  One has the sense that the whole debate is occurring through the wrong end of a very long telescope.

In these posts I will apply the position I develop in my 2013 book Long Wars and the Constitution to the case of the Iran War.  I start not with any specific clause of the Constitution, but its design with respect to the conduct of diplomacy and foreign affairs.  In contrast to war initiation, when this topic arises in litigation the executive branch has plenty of precedents to draw on in support of its exercise of legal authority.  Yet it is also clear from both the text of the Constitution and historical experience that there is no such thing as conducting the nation’s business overseas without Congress.  In this respect, the historical record of joint branch involvement in foreign affairs resembles the role of Congress in regulating the president’s commander-in-chief power, including in wartime, described in a set of articles by David Barron and Marty Lederman.  In other words, a situation of shared rather than exclusive powers.

This point about the shared conduct of foreign affairs goes deeper than to say Congress is involved by constitutional design.  It is that there is no proper way of describing, understanding, or evaluating specific presidential war powers decisions and actions without considering how they figure in the ineluctably connected tasks of advancing the foreign policy and protecting the national security interests of the United States.  These responsibilities are exclusively national and certainly presidents have usually been at the forefront.  Further, while the presidential “first-mover” status that many decry is partly the result of presidential initiative, it is not best characterized by the archaic term “usurpation” as it is mainly a product of congressional delegation, whether by law or through the party-political process.  Either way, there is no inherent violation of the constitutional plan.

What difference does this approach make when questions of presidential war powers do arise?  Consider first the commonly asked question of whether we are at “war.”  “War” is arguably a vague term, with some clear cases and others on the borderline.  The concentration by pundits and members of Congress on defining “war” nonetheless permitted the Trump administration to claim briefly that the Iran War was over(!) before the sixty day mark established by the War Powers Resolution (WPR).  My approach is different.  Reduced to a bare minimum, it says: stop thinking about “war.”  At least, stop thinking about war in terms of number of ships, troops, planes and what they do or can do.

Instead think about the Trump administration’s goals and strategy with respect to the conduct of foreign affairs with Iran.  If, just for example, the goal is “regime change” and reasonable evaluations of what it would take to achieve this in Iran involve military actions or the threat of war, then we are in the kind of “declare war” and “necessary and proper” territory described in the Constitution that was the basis for the WPR.  As we are in the realm of shared power over foreign affairs and national security, Congress is required to have a role in making the relevant decisions.  What counts is the overall objectives and strategy rather than parsing exactly how many aircraft carriers, planes, and troops are needed to achieve them. 

This approach not only affords greater clarity than trying to define “war,” but also yields genuinely new insights with respect to the proper exercise of war powers.  For example, the standard approach emphasizes the initial decision for war only such as President Truman’s June 1950 decision to commit troops to Korea.  On my approach, it becomes clear that President Truman made two quite different decisions for war in Korea – the initial response to the North Korean invasion in June 1950 and the later decision to unify the peninsula which sparked a disastrous intervention by China.  That is, once we consider Truman’s decision in the context of U.S. foreign policy, the distinction becomes apparent, whereas it does not if we emphasize the initial decision only.  Further, we are better able to construct meaningful constitutional analyses of presidential decisions which could easily have led to war (such as those taken by President Kennedy during the Cuban Missile Crisis).  We are also able to understand why decisions for war that were authorized by Congress could be nonetheless controversial, not simply in a political sense but along a constitutional dimension as well (such as the Gulf of Tonkin resolution).

As many highly qualified legal commentators have already concluded, President Trump’s Iran War is unconstitutional and illegal.  I’ll set forth my take in Part 3 of these posts.  But it is not illegal or unconstitutional simply because Trump failed to comply with the WPR or didn’t get Congress to check the right box on a declaration of war form (I’ll note the WPR point is true).  The Iran War is unconstitutional and was likely (not only in hindsight) very bad policy because Trump did not clear his objectives and strategy with Congress is advance.  This is the mandatory constitutional plan.

There’s another advantage to my approach which is relevant to our current circumstances, not simply with respect to our relations with Iran but to the Middle East.  If we analyze war powers from the perspective of U.S. foreign policy and national security strategy, we will be led naturally to inquire why multiple presidents have had such a keen interest and keep initiating military actions in this part of the world.  It is not by accident or coincidence.  Any fair-minded study of the Cold War, starting at least with the Eisenhower administration, would show that the U.S. has a historic national security commitment to the Middle East that goes beyond a general concern with stability or even the future of the state of Israel.  In fact, it was President Eisenhower who came up with the idea of obtaining Authorizations to Use Military Force, AUMFS in advance, prior to military action partly to cope with the uncertainties of pursuing foreign policy objectives in the region.  One such longstanding objective is the commitment to keeping the Soviet Union or Russia completely out of the region for all sorts of sound reasons.  Iran frustrated that objective after its 1978-79 revolution – which is yet another reason why we remain interested in Iran today.  Of course, it’s not the only reason.  The point, however, is that to evaluate properly presidential action in a constitutional sense we need to understand why presidents act the way they do.  That can be achieved only through the kind of approach I advocate here.

In Part 2, I’ll use a recent article by Jeh Johnson and Ethan Klaris in the Journal of National Security Law & Policy to analyze the typical structure of the war powers debate and where it goes wrong.