At Volokh Conspiracy, Steven Calabresi: President Trump Doesn’t Need Congressional Approval for His Actions as to Iran. From the introduction:
President Donald Trump is taking a lot of heat for the military operations he launched unilaterally as Commander in Chief of the U.S. armed forces against the Iranian pirates/terrorists: (1) striking Iran militarily, (2) closing the Strait of Hormuz to Iranian oil exports, and (3) aiming (I expect successfully) to force Iran into capitulation. In fact, what President Trump is doing today with Iran is nothing more than a long overdue exercise of U.S. military power, of the sort that Presidents Thomas Jefferson and James Madison engaged in, without congressional approval, against the Barbary Pirates from 1801 to 1815.
The Barbary pirates were an early 19th century analog of the modern-day Iranian terrorist regime. They preyed on American and European trading ships and enslaved their crews. It is estimated that over 1 million American and European sailors were sold into slavery by the Barbary pirates during the centuries in which they preyed on American and European shipping. Robert Davis, British Slaves on the Barbary Coast, BBC (February 17, 2011). The Barbary pirates sailed out of Libya and North Africa generally until France conquered Algeria in 1830.
Congress never declared war against the Barbary pirates, but Presidents Jefferson and Madison rightly used their executive Commander-in-Chief powers unilaterally to cause American ships and marines to subdue them with the use of U.S. armed force. This defeated the Barbary pirates, and the Framing generation, which was still mostly alive from 1801 to 1815, acquiesced in the constitutionality of this unilateral presidential use of military force. The United States has fought only five declared wars in our history since 1789—the War of 1812, the Mexican American War, the Spanish-American War, World War I, and World War II. But U.S. Presidents, acting as Commanders in Chief, have unilaterally deployed our armed forces many other times.
Presidents have deployed the U.S. military without congressional permission on at least 125 occasions like the one that subdued the Barbary Pirates (1801-1815). Some of those engagements have been quite bloody such as the Korean War (33,700 deaths in battle), the Vietnam War, for which congressional authorization was withdrawn from 1971 to 1975 (3,246 deaths in battle), and the overthrowing of Libyan dictator Muammar Gaddafi by President Obama, in 2011 (4 deaths including of a U.S. Ambassador). These engagements were not authorized but were paid for by Congress. John C. Yoo & Robert J. Delahunty, The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them. In addition, the U.S. has fought four undeclared wars with congressional authorization in my lifetime: the Vietnam War (1964-1971), the Gulf War (1991), the Afghan War (2001-2021), and the Iraq War (2003-2011). The gloss of history on the constitutional text supports everything that President Trump is now doing.
I disagree on several points, although I’m more sympathetic to the ultimate conclusion. And I have a substantial reservation about any negotiated settlement.
(1) It is not true that Congress never authorized the Barbary wars. Congress passed a resolution in 1802 recognizing a state of war with Tripoli, as a result of Tripoli’s declaration of war on the United States, and authorizing President Jefferson to respond. Congress passed a similar resolution regarding Algiers in 1815, authorizing President Madison to respond. Although these conflicts are not recognized in U.S. history as “declared wars,” they seem to qualify in my view. The resolutions regarding Tripoli and Algiers are very similar to the resolution authorizing the Mexican War in 1846, which is treated as a declaration of war. Like the Tripoli and Algiers resolutions, the 1846 resolution recognized a state of war as result of Mexico’s actions (attack on U.S. troops in that case) and authorized President Polk to respond. (These conflicts are discussed in my co-authored article Delegating War Powers, part II.A, pp. 756-58.)
(2) The Tripoli situation is complicated because Jefferson directed the use of force before Congress authorized it. He and the majority of his cabinet took the view that he could act without Congress because Tripoli had initiated a state of war. (Jefferson did not make this argument to Congress, however, leading Alexander Hamilton to write a sharp response to what he thought Jefferson’s view was — in fact, Hamilton and Jefferson agreed.) So Professor Calabresi is right that Tripoli is a precedent, to some extent, for independent presidential use of force.,
Whether the Tripoli situation is a useful precedent for President Trump in Iran depends on whether Iran’s previous actions could be characterized as an initiation of war against the United States, to which President Trump can respond on his own authority. Some commentators have made that argument, but I am doubtful. Among other things, the United States did not treat any of Iran’s previous actions as initiating war when they occurred (in contrast to Jefferson and Tripoli).
(3) Professor Calabresi is on much stronger ground, in my view, in arguing that recent practice supports Trump’s actions. In addition to President Obama’s actions in Libya, there were unilateral presidential uses of force in Panama, Yugoslavia and Syria (with respect to ISIS), to name a few. Originalists might dismiss these as similarly unconstitutional, but living constitutionalists would seem to face a greater challenge (see my pointed comments to Professor Harold Koh in this exchange).
(4) Finally, beyond war powers, there is the question of a negotiated settlement, which appears to be President Trump’s goal. As commander-in-chief, the President can of course order the U.S. military to stand down upon receiving assurances from Iran regrading its future behavior. And the President can enter into an informal, nonbinding arrangement with Iran reflecting this understanding. But in my view the President cannot enter into a formal binding settlement other than through a treaty approved by the Senate (or, perhaps, by Congress as a whole). As an original matter, the President does not have independent authority to enter into binding agreements of this nature on behalf of the United States — and historical practice is not much nonoriginalist help on this issue either. (These points are discussed in this article: Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.)
Posted at 5:37 AM