Operation Epic Fury and the Law

Preventing unlawful wars waged by presidents will require both legislative and political action.

President Donald Trump’s attack on Iran represents a dramatic usurpation of Congress’s war powers — even by the standards of recent decades of unilateral executive military action. Whether or not he pursues the maximalist stated objectives— including regime change in Tehran — Operation Epic Fury has already sparked a regional war in the Middle East. Trump’s attack further undermines both the constitutional order in the United States and the U.S.-built international legal order concerning the use of force. Responding to this executive overreach will require both political and legislative action.

In attacking Iran without congressional authorization, Trump arrogated the legislature’s Article I war powers. The U.S. Constitution gives to Congress — not the president—the power to declare war. The legislative branch exercises this power both through declarations of war and authorizations for the use of military force (such as those for the war on terror and for the 2003 invasion of Iraq). Thomas Jefferson lauded this feature of the Constitution in a 1789 letter to James Madison, noting it was “one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body.” Here, Trump has cried “havoc and let slip the dogs of war” all by himself.

(Douglas Rissing/iStock)

Article II of the Constitution in turn makes the president the commander in chief of the military. The framers of the Constitution envisaged that the president would have the authority to “repel sudden attack” without prior congressional authorization. That was obviously not the situation leading to Operation Epic Fury.

Despite this constitutional allocation of war authority, across administrations of both parties the executive branch has developed an extremely permissive legal doctrine on presidential war powers. Under the executive branch legal lore, the president has vast discretion to use military force unilaterally to advance self-identified “national interests.”

Yet, this executive framework for using military force has not been endorsed by the courts or Congress. To the contrary, Congress has adopted a much narrower constitutional understanding of when the president may use military force. In the 1973 War Powers Resolution, a veto-proof majority of Congress adopted the position that the

constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces

As amended, the 1973 Resolution also provides for expedited procedures for congressional action opposing such introductions into hostilities — a joint resolution in the Senate (presented to the president for signature or veto) and a concurrent resolution in the House (not presented to the president and therefore not capable of becoming binding law). Sen. Tim Kaine (D-VA) has introduced such a joint resolution opposing Trump’s war on Iran, which is due for an imminent vote.

The U.S. war on Iran also appears to be a flagrant violation of international law. Indeed, the Trump administration has not seriously argued otherwise. Article 2(4) of the UN Charter prohibits the threat or use of force by states in their international relations and is the cornerstone of the U.S.-built international legal order. Under the U.S. Constitution, this treaty is also domestic law binding on the president. Treaties — including the UN Charter — are the law of the land under the Supremacy Clause and “laws” the president is bound to faithfully execute under the Take Care Clause of the Constitution.

The administration has not articulated any plausible claim for how the attack on Iran might be reconciled with Article 2(4) as an exercise in lawful self-defense in response to an armed attack or even a threat of an imminent armed attack. Trump’s attack on Iran thus conflicts with and undermines not just the U.S. constitutional order and its allocation of war powers but also the international legal order the United States helped establish in the wake of two world wars and the Holocaust.

The framers of the Constitution intended for determinations on using force to require the collective decision-making of the people’s elected representatives rather than on the whims of one person. Such deliberations should require public debate on whether military action was necessary, its costs and benefits, and potential alternatives such as diplomacy. In disregarding Congress’s constitutional role, Trump — again — short circuited this process.

Existing legal tools to curtail or prevent further unauthorized military action are inadequate. For a variety of reasons, recourse to the courts is unavailing. The guardrails imposed by the War Powers Resolution provide considerable room for interpretation, making them difficult or impossible to enforce in practice. In addition, despite the expedited procedures for legislation to require the removal of forces from hostilities, the hurdles to enacting binding legislation are formidable.

Fixing this situation will require both legislative and political action. Legislative reforms should include small-scale fixes to define terminology in the 1973 War Powers Resolution — which could potentially be accomplished through an amendment to the National Defense Authorization Act as well as structural reforms. The bipartisan National Security Powers Act, for example, would replace the War Powers Resolution with more robust safeguards, including funding cut-offs for hostilities not authorized by Congress.

There is no silver bullet solution to the problem of a president bypassing Congress to use force unilaterally and in violation of America’s treaty commitments. The solution to the problem of an imperial, lawless presidency and an indifferent Congress is political. The people elected to the White House and Congress must be willing to fulfill their oaths to and duties under the Constitution — including with respect to upholding U.S. treaty obligations. And the American people need to hold their elected representatives to their responsibilities.

Brian Finucane is senior adviser to the U.S. Program at the International Crisis Group, former attorney adviser on war powers and the use of force at the State Department.

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