I recently participated in this discussion with Yale Professor Harold Koh at the National Constitution Center on presidential war powers and the Iran conflict: What is the Constitutional Balance of War Powers Between Congress and the President?. Thanks to Julie Silverbrook for arranging and moderating. Here is the Center’s description of the event:
On February 28, President Trump announced “major combat operations in Iran.” The operation, known as Epic Fury, has renewed a long-standing debate about the scope of presidential war powers and who decides when the nation goes to war. Last week, Congress rejected legislation that sought to require President Trump to obtain congressional approval for military actions against Iran. The Constitution divides war powers between Congress, which has the authority to declare war, and the president, who serves as Commander in Chief.
In this episode, Harold Hongju Koh of Yale Law School and Michael D. Ramsey of San Diego Law School explore the constitutional foundations of war powers, as well as the War Powers Resolution of 1973, and how they inform the constitutional authority debates about the use of military force today. Julie Silverbrook, Chief Content and Learning Officer at the National Constitution Center, moderates.
My comments generally echoed my comments on war powers and Venezuela in this essay (only more so, because the Iran conflict is even more obviously a “war” in the Constitution’s original meaning). That essay in turns draws on my longer articles about war powers, here and here. In sum (a) under the Constitution’s original meaning, Congress had exclusive power over the decision to initiate the use of military force (because wars could be “declared” either by formal announcement or by the use of force); and (b) under the original meaning, “war” was defined broadly to include (at least) the use of sovereign force against foreign nations; so (c) congressional approval would likely be required for the Iran operation (and the Venezuela operation) under the original meaning; but (d) the President has a much stronger argument under an evolving Constitution approach because in modern times presidents have used force on numerous occasions in somewhat similar circumstances, largely with Congress’ acquiescence.
Professor Koh, I thought, was in a somewhat awkward position because he largely agreed with what I said, but he’s not an originalist and he very much wanted to say that the President’s Iran actions were unconstitutional. And his position was all the more awkward because — although I politely did not point this out — he played a major role in justifying President Obama’s unilateral military action in Libya, which is a key precedent the Trump administration’s defenders have invoked. He had some arguments about why Libya was different from Iran, and I agree that it was somewhat different to the extent of being a substantially lesser-scale operation. But that’s how living constitutionalism works: one precedent builds on and expands beyond an earlier one, until it “evolves” far beyond the starting point.
We agreed that the modern Congress has been weak in largely ceding its war power to the President. I closed with the suggestion that, as a small step toward reclaiming a role, Congress might approve the Iran operation, thus asserting its power without actually provoking a conflict with the President.
Posted at 6:07 AM