Last week after learning about America’s bombing of Iran, two debates emerged: Did we do the right thing? And did President Trump have the legal authority to attack Iran without congressional authority or input?
The first question is difficult to answer, and we probably will not know until everything has played out. The second is also difficult in that our Constitution is confusing on the subject. Yet a handful of presidents, including the most recent ones, have created the precedent that presidents do have the power to attack any nation if they believe the foreign country is a threat to our national security.
Historically speaking, war powers have always fallen to the executives mostly in the form of kings. The king of England could go to war without Parliament’s approval. As our founders modeled our presidency after kings in many ways, it seemed right that Article II, Section II of the Constitution reads, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” Yet surprisingly, it stops there without any more clarification.
Some of our founders seemed to support that the president retain all war powers like Gouverneur Morris and even George Washington, but the most powerful voice was Alexander Hamilton, who wrote in Federalist No. 70, “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.” In other words, too many cooks in the kitchen spoil the broth or the sluggishness of Congress would make it hard to conduct a war. Yet other founders like James Madison feared giving too much war power to one man.
As they did in most cases, those who wanted to limit the president’s powers won. Article 1, Section 8, Clause 11 grants authority to Congress, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Here the Constitution does give some clarification. In Clauses 12-16 it reads, “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
The compromise between the two arguments was a change in the wording. Originally, the clause in Article I read Congress power to “make” war. That was changed to Congress has the power to “declare” war. Their thinking was that the president as commander- in-chief needed the ability to use the army in self-defense if Congress was not in session. In other words, the Congress has the authority to declare or initiate war while the president has the power to defend the nation and conduct a war once started.
This was not really an issue in the 19th century as all our wars were declared as such by Congress. Yet Thomas Jefferson did authorize the attack of the Barbary pirates without congressional permission. Instead, he claimed it as a defense of our shipping lanes. While it would be another century away, this idea of using aggressive foreign action as a defense became standard practice during the Cold War.
With the Cold War it was easy for presidents to continue with the idea that the commander- in-chief had a responsibility for defense. With beliefs such as the Domino Theory, it was believed that we must stop communism everywhere in order to stop it in America. So, wars such as Korea and Vietnam were conceived as defensive wars—which presidents also led us into without an official declaration from Congress.
As Vietnam was winding down, Congress decided to fight to retain some of their war powers and in 1973 passed the War Powers Resolution. Basically, the resolution declares that the president has 90 days to use the military until he has to pull back, unless either given permission by Congress or the U.S. is under attack. It is suggested that he confer with Congress before any actions taken, but not required. After any attack, the president is required to report to Congress within 48 hours. However, what that should look like is not spelled out.
While the War Powers Resolution does give presidents a timeline, it has done little to stifle their ability to attack in the name of defense. Following the act, Gerald Ford sent marines to rescue the crew of the SS Mayaguez that was seized by Cambodian Khmer Rouge forces. Jimmy Carter ordered a failed rescue mission against hostages in Iran in 1979. Ronald Reagan sent marines into Grenada and Lebanon as peacekeepers and ordered a missile strike against Libya. George H.W. Bush sent troops to Panama and Somalia to restore order but did get congressional approval for the Persian Gulf War. Bill Clinton upped the game by ordering strikes against Bosnia, Iraq, Kosovo, Sudan and Afghanistan. He also sent troops into Haiti and Somalia.
We did see a change in 2001 after 9/11 when Congress passed the Authorization for Use of Military Force Act. This act grants the president the power to use “necessary and appropriate force” against those who planned, authorized, committed or aided the attacks, or those who harbored them.
Most presidential actions since 2001 have used to this act to justify attacks without specific approval of Congress. George W. Bush did get permission for the War on Terror but did order missile attacks against Pakistan, Yemen and Somalia under AUMF. Barack Obama took AUMF to a new level when he ordered attacks against Pakistan, Yemen, Somalia and Libya. Finally, Joe Biden issued attacks on Yemen, Syria, Iraq and Somalia without congressional authority.
Yet none of these attacks have received the scrutiny of the attacks done by Trump in his two terms.
Const itutional ly, bombing Iran does seem questionable, unless you call it “defense.” Yet there clearly is precedent for the action.
As students argued in class last week, the wrongs of past presidents don’t make it right. Well… maybe so. But with every president acting alone since 1973 and the new amendments created by Congress along the way, Trump is at least standing on solid legal ground.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@ gmail. com.
