Northeastern University constitutional law expert Jeremy Paul calls the authority to conduct war “a very close balancing act.
The United States launched airstrikes on Saturday targeting Iran’s nuclear sites, surprising American citizens, Iranian defenses and, apparently, most members of Congress.
Some lawmakers — predominantly Democrats but also a few Republicans — quickly criticized the Trump administration, with some saying that the strikes were “illegal” and “unconstitutional” because only Congress can declare war.
But Congress has not declared war since World War II. The president is also the commander in chief of the U.S. Armed Forces. Moreover, the United States has carried out military strikes many times without seeking congressional approval.
Northeastern University legal scholar Jeremy Paul calls the authority to conduct war “a very close balancing act.”
“Everyone understands that the president has some commander-in-chief power, and everyone understands that Congress has power to declare war because we shouldn’t be committing long-run American military force without much more democratic deliberation,” says Paul, a professor in the university’s School of Law. “It’s very challenging to see where the balance should be set.”
So, where’s the balance today?
Paul explains how laws like the War Powers Resolution and the Intelligence Oversight Act regulate military action, explores whether the U.S. is at war with Iran, and breaks down the political versus the legal disputes playing out in Washington.
His comments have been lightly edited for brevity and clarity.
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The War Powers Resolution, also called the War Powers Act, was passed by Congress in the aftermath of the Vietnam War and was designed to send a message to the president that the Constitution grants Congress the power to declare war and that the president cannot unilaterally take the country into war without congressional authorization.
It still is the law, but it has been a subject of enormous controversy and presidents have mostly operated through an Authorization for the Use of Military Force (AUMF) — that’s what you saw in the Iraq War and after 9/11, which is not the same thing as a declaration of war but puts Congress on record as supporting use of military force.
With the War Powers Resolution, the president has to report within 48 hours of actions taken, and then there’s a limited amount of time to get approval from Congress or take troops out. But none of that applies here because no troops were sent; the planes were in, the planes were out.
And strikes are not the same thing as war. Think of all the drone strikes that have been launched against terrorists — there is not an AUMF for every drone strike, although presidents may argue that the original AUMF post 9/11 could extend to many subsequent actions.
There’s a second set of statutes meant to apply to what is called “covert actions” — the Intelligence Oversight Act. This requires the president to, in the most extreme covert cases, consult with the Gang of Eight — the Republican and Democratic leaders of the House and Senate and the chairperson and the ranking member of the Senate and House intelligence committees. That’s something that’s supposed to happen before any action is taken.
I think the administration is on relatively solid ground in suggesting that this was an action that needed to be kept secret and thus consultation beyond the Gang of Eight was too risky.
I think we don’t know yet.
If, for example, these bomber attacks on the Iranian nuclear sites happened and now are over and that’s the end of hostilities, then the administration will be right. On the other hand, if the Iranians retaliate and that leads to our retaliation and their escalation, then the dropping of these bombs will basically have been the beginning of a war and then the administration will be wrong.
It’s very difficult for the average person to separate how much of this is a legal battle over the question of did the administration break the War Powers Resolution, and how much of this is a political battle of did the administration do the right thing when — to many Americans — Iran posed no immediate threat to the U.S., in contrast to the immediate threat it might have posed to Israel.
I think people in Congress who are demanding accountability from the president make a good point that, given that this might be the beginning of long-run hostilities, there should have been more consultation. But given the need for secrecy, the whole success of this operation was based on the fact that it was kept secret — the wisdom of advanced consultation is not so clear — it’s just not as easy as the critics are saying.
But there is a statute in place precisely to deal with that eventuality, which requires the president to consult with the Gang of Eight, and he certainly didn’t do that with regard to the Democrats. The system is designed so that those people are supposed to be trusted. If we have someone who is the head of our intelligence committees or a congressional leader who can’t be trusted, we’ve got a bigger problem.