Due to a misunderstanding of the US legal system (under which the Constitution is supreme) and a misreading of certain laws, some confusion has arisen within the Russian expert community regarding the legality, under US law, of Trump’s attack on Iran. I would like to take the opportunity to clarify that the attack is manifestly illegal.
The US Constitution (which in theory still matters and, indeed, takes precedent over all other law in the US) provides Congress with the authority “to declare war”. It does not provide the President with similar authority. Accordingly, the US may conduct hostilities – or at least initiate war against another state – only with Congressional authorization.
Obviously, going to war with another state, without actually declaring war, does not allow the President to avert this clause. It merely means that the action is now not only unconstitutional, but also a violation of international custom/norms. One of several such violations, given Khomeini’s assassination (a violation of the norm against targeting leaders), the murder of Iranian schoolgirls and other civilians (who, amongst Iranian casualties, so far appear to outnumber legitimate military targets – incidentally, in the same way that civilians have been the vast majority of Israeli victims in Gaza), etc.
Note the specification above: (1) initiation (2) of war (3) against another state – that is definitely the authority of Congress. Gray areas do exist around (1) waging a war that has been started by an adversary, (2) deploying forces into a context and/or for purposes that may develop into combat, and (3) using force against non-state actors. The War Powers Resolution was intended to address these and perhaps other gray areas; it constrained the President’s authority within such situations, and certainly did not expand his authority beyond such contexts.
In particular, the War Powers Resolution requires that, if the President deploys forces for combat (or potential combat) – in a manner that is permissible under the constitution, e.g. in response to attack, or for ‘combat-adjacent’ purposes (e.g. ‘advisors’ to South Vietnam, or forces in Saudi Arabia to deter a continued Iraqi offensive in 1990), or against a non-state actor like al-Qaeda[1] – then the President must receive authorization from Congress within 90 days.
Again, this is not an expansion of the President’s authority, but a narrowing of it. It was intended to prevent a repeat of the US’s slide into the Vietnam War. It does nothing (and could do nothing, given Constitutional supremacy) to alter Congress’s exclusive authority to initiate war against other states. The Resolution explicitly states this in its third paragraph: “The constitutional powers of the President…to introduce [US forces] into hostilities, or into situations where [hostilities are likely], are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3)…attack upon the United States, its territories or possessions, or its armed forces.”
He has none of those things. The attacks, therefore, are unconstitutional and illegal under US law. If the rule of law still existed within the US, the US military would have refused to obey the orders (given that they are illegal and thus invalid), and the President would be impeached for high crimes and misdemeanors.
Actually, he really should have been impeached during his first term, for the almost-as-clearly-illegal airstrikes against Syria. Unfortunately, such strikes were one of Trump’s few actions that Democrats actually supported. Democrats were, if anything, mostly concerned that Trump was not hawkish *enough* in his first term, inventing the Russiagate hoax and impeaching Trump for the ‘high crime’ of not supporting Kiev with sufficient enthusiasm. And, indeed, Obama also violated the Constitution with his attacks on Libya. (Although they – like Trump’s airstrikes on Syria – were not quite as blatantly illegal as Trump’s attacks on Iran and Venezuela, since Libya and Syria were riven by civil wars and thus *conceivably* their governments could be viewed as illegitimate.) So these new attacks are probably best seen less as a specifically Trumpian or Republican failure, and more as a manifestation of the US’s general slide from the rule of law into Caesarism (not the fun kind).
