A characteristically excellent analysis, from a leading scholar of the subject, at his Executive Functions substack. An excerpt:
A lot of people over the next few days are going to argue with confidence that President Trump violated, or didn't violate, the Constitution when he bombed Iran over the weekend without congressional authorization.
You might think that the Constitution would provide a clear answer to such a momentous question. But it doesn't.
Or you might think I would know the answer, since I (with Curt Bradley and Ashley Deeks) have a casebook that covers the issue; I have written about it for decades; and I served in the Office of Legal Counsel that is the storehouse of executive branch legal opinions on the topic, one of which has my name on it. But I don't know the answer.
I don't know the answer because I do not think there is anything approaching a settled or clear normative framework for analysis.
Very often Supreme Court decisions guide constitutional analysis. But here we have only the Prize Cases, which in the Civil War context held that "[i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force." This is basically all the Court has ever said in a holding about the president's unilateral war powers; and because of justiciability constraints it is all the Court is ever likely to say.
So when looking for normative sources against which to assess the constitutionality of the Iran strikes, that basically leaves the constitutional text (subject to one's favorite but contestable interpretive theory) and historical practice.
The Constitution gives Congress many war-related authorities, most notably the power "[t]o declare War," "raise and support Armies," and "provide and maintain a Navy." And Article II says the president "shall be Commander in Chief of the Army and Navy of the United States." There has been a massive debate since the founding about what these provisions mean and how they are supposed to operate….
The framers worried about the president using force unilaterally (and self-servingly) to bring the nation into war in ways that did not serve the national interest. But it is not at all clear how they grounded that concern in constitutional text. One plausible interpretation of the constitutional provisions is that the primary constraint came in Congress's control over appropriations and the standing military, not the declare war clause. On that theory the Iran strike would be lawful since the president deployed the tools that Congress gave him without constraint.
The counterfactual about what the framers would have thought about the president's contemporary use of military force without congressional authorization nonetheless underscores something important: We have had almost 240 years of constitutional practice with war powers, and much has changed. The basic story of change is as follows.
Congress over the centuries authorized standing military forces on a larger and larger scale, equipped those forces with more and more powerful weapons, and rarely put affirmative constraints on the president's use of military force. As Congress did these things, presidents used these military forces abroad without congressional authorization more and more aggressively, both offensively and defensively, scores and scores of times….
If you're at all interested in the subject, read the whole thing.
The post Prof. Jack Goldsmith (Harvard) on "Was the Iran Strike Constitutional?" appeared first on Reason.com.
