Many posts have discussed war powers and the US military.
As a constitutional matter, was President Trump required to have congressional authorization before he militarily struck Iran’s nuclear facilities? The answer is, “no.”
The Congress’s authority “to declare war”—found in Article I, sec. 8 of the Constitution—is not the same as “to make war.” As deliberations in the Constitutional Convention make clear, the change in the draft constitution’s text from “make” to “declare” was intended to give the president the authority to deal with obvious pending threats and situations in which the United States was already under attack. In short, the power to declare war was the authority to move the country formally from a state of peace to that of war, with all the domestic and international legal ramifications that follow from that declaration.
The key point is that Iran’s government and Iranian-directed proxies have been waging unconventional war on the United States for decades. ...
In 2020, after President Trump ordered the killing of Qassem Soleimani, the Iranian general in charge of Iran’s Islamic Revolutionary Guard Corps’ Quds Force, the White House and the Justice Department issued constitutional justifications for the action. As lawyers are wont to do, both had a bit of the kitchen-sink character, with differing legal justifications tossed in. The least credible was suggesting the 2002 Authorization for Use of Military Force Against Iraq was grounds for eliminating Soleimani. The most credible was that he had led the Iranian force and its proxies in planning and executing attacks on American military personnel and showed no signs of stopping. As a matter of self-defense, the president’s order to kill him was constitutionally justified.
But rather than stick with this straightforward justification, both the White House and the Justice Department slip in grounds for the president unilaterally employing the military offensively that are of a more recent (and problematic) vintage. The White House memorandum states the president not only has the authority to protect Americans from imminent attack but also “to protect important national interests.” In turn, the Department of Justice document argues that the president was not required to seek congressional approval because the action taken would not “bring the Nation into the kind of protected conflict that would rise to the level of war”—and hence, fell outside of the Congress’s prerogative of declaring war. Both arguments are found in the April 2011 opinion issued by the Office of Legal Counsel laying out the constitutional grounds for President Obama decision to order the American air campaign over Libya.
