At Public Discourse, Michael Paulsen: How to Start Another Unconstitutional War. From the introduction:
America is in an unconstitutional war. Does anybody care?
Early on Sunday morning local time, June 23, United States armed forces at the direction of President Trump undertook a large-scale military attack on Iran, a nation with which we were not (then) in a state of war. Though there had been tensions, hostile acts, and military reprisals for many years—including the targeted drone killing of Iranian general Qassem Soleimani in Iraq in January 2020—neither nation had initiated an armed attack against the other nation on its own soil. Until last month.
President Trump ordered the attack on his own authority. Congress had not authorized war with Iran. It had neither formally declared war nor enacted the legal equivalent of such a declaration in the form of a statutory “Authorization for Use of Military Force” (AUMF). Nor did the attack on Iran fit within the scope of any prior, extant congressional authorization of force, like the September 18, 2001 authorization of force against nations and organizations responsible for the September 11 attack on America. Iran has done many bad things, but there does not appear to be a true connection between Iran and the September 11 attacks a quarter century ago.
The United States’ attack on Iran was not a defensive military action directed to repelling an immediate attack on the United States or on its armed forces abroad. Nor was this an attempted rescue operation to free U.S. persons being held abroad (as President Carter attempted unsuccessfully in 1980). Nor was it a situation of immediate emergency where use of force was necessary to the preservation of the nation or its people, and where Congress could not act within the relevant timeframe. The Iranian nuclear threat had been gathering for a long time. Robert George and I publicly proposed that Congress authorize the use of force more than a decade ago. There was plenty of time, and sufficient reason, for Congress to have exercised its constitutional power to declare war, in the form of such a statutory authorization. This was not a sudden, defensive response to an otherwise unanticipated situation.
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The attack, as I will explain, was illegal under the U.S. Constitution. But it was hardly unprecedented. Presidents have done this sort of thing before. This raises troubling questions: is the Constitution altered—amended, superseded, repealed—by its repeated violation? If Trump has merely done what a lot of presidents have done, if perhaps more dramatically, can his attack on Iran really be said to be “unconstitutional”? Does the Constitution really even provide an operative rule of law if presidents do not observe that rule and no one else enforces its observation? Should one care about what the Constitution says and what its framers intended if our constitutional practice has steadily moved in a different direction, the courts have not rejected that movement, technological or social conditions have changed, and one perhaps favors military action against Iran in any event? Isn’t this violation of the Constitution relatively “harmless”? As nails in the Constitution’s coffin go, isn’t this a rather small one? And finally, do we even care about the Constitution anymore when it comes to war powers (and to what else)?
These are important questions. The Iran attack offers a disturbing parable about constitutional interpretation and the state of constitutional discourse today—and about what that condition might portend for the future.
I agree with the originalist analysis — see Textualism and War Powers. The questions raised about constitutional practice are critically important ones.
Posted at 6:13 AM