The recent U.S. act of war against Iran was fortunately followed rapidly by a ceasefire. I am open to Michael Ramsey’s argument that the recent U.S. strike by B-2 bombers on Iran’s nuclear facilities flouted the original meaning of the Declare War Clause in the Constitution, but so far it looks like the Clause was respected. The need for a congressional vote became more compelling after the strike than before, but the ceasefire made the matter moot as a constitutional matter. Like Mike, I’ll skip over the War Powers Act here.
The key factor in my view is whether Congress was adequately notified beforehand, and thus had an opportunity to put the matter to a vote if it wanted to. In this case, I haven’t seen proof that Congress was not adequately notified beforehand. This matter of notification has constitutional significance.
Professor Saikrishna Prakash has written as follows (emphasis added):
[I]n eighteenth-century America and Europe, the “declare war” power was understood in two senses. The narrow, formal sense referred to the power to issue formal declarations of war….[There was also] a broader, categorical reading of the “declare war”power. In the eighteenth century, any decision to wage war was seen as a declaration of war….
Because the Declare War Clause did not explicitly say which sense was intended, there was probably room for some “liquidation” of this matter. That is, the issue needed to be resolved by practical experience, probably tailoring the requirements with respect to the various different ways that wars can start. In the present case of a war joined by the U.S. utilizing an element of surprise, my sense is that adequate congressional notification to congressional leaders, combined with their decision not to immediately put the matter to a vote in Congress, functioned as a temporary, informal, and secret declaration of war.
I’m not saying that Congress can in effect delegate the war declaration to the president through nonaction by the leaders. I’m saying that in certain circumstances, an affirmative green light from congressional leaders is a declaration of war, even though informal, secret, and/or temporary.
The idea of a “secret declaration” or a “temporary declaration” might sound oxymoronic. But is it really? Both houses of Congress have always been equipped to conduct business in secret (in “executive session” which often addresses sensitive or confidential matters). I find some mention in pre-1789 books of a “secret declaration and acknowledgement” by the Queen of Scotland, though unrelated to warfare. Likewise, I find pre-1789 books discussing a “temporary declaration,” though again unrelated to warfare. Given the great variety of ways that warfare can arise, especially in view of technological change, it seems appropriate to attribute a meaning to the word “declaration” in the Constitution that varies somewhat from one context to another, to include things like secret declarations, informal declarations, and temporary declarations. The U.S. Supreme Court reasonably said about the Korean War: “Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration.”
Whether congressional leadership is empowered to make permanent decisions like this, without ever putting it to a vote, is up to Congress, and I hope Congress would demand a vote if and when they disagree with their leadership’s behavior. Thus, congressional leadership can be notified and can temporarily approve war, followed by later repudiation by their members.
Interestingly, the framers did not confide the declare-war power to the Senate alone, even though the Senate was designed as a small body for purposes of secrecy and speed (especially in the making of treaties). The framers felt that the consequences of war could be so immense that the full Congress had to be involved. That is why I don’t think notification to just one house of Congress in the recent B-2 situation would have been constitutionally sufficient. And indeed President Trump did notify both the Senate Majority Leader and the Speaker of the House in advance (notification to the minority leaders was apparently more tenuous but also less essential).
I do not know whether the congressional leaders in this instance (Sen. Thune and Speaker Johnson) merely acquiesced in silence, or instead affirmatively told the president that Congress would likely approve the mission and would not need to take any immediate formal congressional action. If the congressional leaders made an affirmative statement like that, and had authority to do so under the rules and precedents of each house, then It could amount to an informal declaration of war by Congress. But even if congressional leaders silently acquiesced, that does not mean the President made a declaration of war; the President can informally deliver a declaration in concert with a temporary unspoken decision by congressional leadership on behalf of Congress.
The situation in 1950 with the Korean War was different in some ways (e.g. there was a sudden invasion of a U.S. ally unlike the Iran case), but also similar in some ways, to what happened this month. President Truman requested a congressional resolution of support after the U.S. already had sprung to South Korea’s defense. Congress decided such a resolution was unnecessary. Truman said he was reluctant “to appear to be trying to get around Congress and use extra-Constitutional powers,” and Truman added that it was “up to Congress whether such a resolution should be introduced.” If Congress had voted on the draft resolution that was proposed by the president, and defeated it, I don’t think Truman could have constitutionally proceeded with the Korean War, and it’s doubtful Truman thought so either (despite his preference for the euphemism “police action” instead of “war”). And, of course, Congress made the decision to fund it.
A congressional vote in advance of the B-2 strike (in executive session) would likely have leaked from the House and alerted Iran, which could have made even greater preparations than they actually did. Congressional leaders were probably entitled to tell Trump that an authorizing resolution would pass but was unnecessary (as Senate Majority Leader Scott Lucas told Harry Truman); even silent acquiescence by congressional leaders would tend to show that Trump was not declaring war, but rather was communicating the will of Congress.
A ceasefire took effect shortly after the B-2 strike, but otherwise a congressional vote to authorize continuation of the war would have been a very good idea, whether required by the Constitution or not. Under the circumstances, it’s more likely that such a vote was constitutionally required after the strike than before, and certainly Congress possessed power to demand a vote at any time.
Posted at 7:30 AM