Washington, the decision of President Donald Trump to order strikes in Iran, among the most important he has done as commander in chief, is the last example of the military measures of an US president without first seeking the approval of the congress. And experts say that, although their power over US armed forces is not absolute, it is most likely that small legislators do it.
Trump is supposed to submit to Congress a legal justification to have bombarded Iran’s nuclear facilities within 48 hours after the operation. Unlike the tangible consequences, Trump has faced for other movements in which he tested the limits of the Executive Power, such as judicial decisions against him, any price he may pay for this decision would be largely developed in the US political scene and on the world stage, where the reputation of the United States is at stake.
“The presidents in the last 25 years have certainly been stretching the envelope of the presidential authority to use force,” News John Bellinger, an attached member of the International and National Security Law in the Foreign Relations Council, told NBC. “Using force more and more, displaying the military more and more, without the authority of Congress, and Congress, with some persistent objectors, has simply accepted that.”
The limits of presidential power to use military force are established in sections of the Constitution of the United States, the resolution of the 1973 War and the United Nations Charter.
Article 1 of the Constitution makes clear: Congress, and no other part of the federal government, has the power to declare war. But that is something that Congress has not formally done in more than 80 years, since World War II.
Although Congress has approved what are called authorizations of the military force and appropriate funds to help in conflicts in progress, its ability to control when the nation is at war has decreased, in part by its own actions, while the power of the president’s office has expanded.
The resolution of the 1973 war powers is a law designed to provide control over the president’s power to involve the United States in military actions without the consent of the Congress. It was approved by the veto of President Richard Nixon following the Vietnam War, which Congress never declared as a war, although he forcibly authorized the resolution of the Gulf of Tonkin.
According to the resolution of war powers, “in any case in which the United States armed forces are introduced” when war has not been declared, the president has 48 hours to notify, in writing, the speaker of the Chamber and the president of the Senate Pro Tempore. The law requires that the notification includes why the President took the action, the authority under which the estimated scope and duration of hostilities or participation were taken and “the estimated scope and participation.” And the resolution also says that every time a president uses the armed forces without notifying Congress in advance, that use must be completed within 60 days.
Bellinger said that any notification to Congress that Trump sends, which Bellinger told NBC News that the Department of Justice will probably prepare, will probably rely on the authority granted to the President in article II of the Constitution, which makes the president the president into chief. President Joe Biden cited article II in 2021 after he ordered attacks in Iraq and Syria who said they were aiming at a “group of militias backed by Iranian responsible for the recent attacks against US personnel in Iraq.”
Presidents test limits
Although Congress acted after the United States retired from Vietnam to restrict presidents in their use of military force, the last decades have seen the presidents boost those restrictions.
On March 23, 1999, the Senate approved NATO’s air attacks against what Yugoslavia was then to force a Serbian withdrawal from the province of Kosovo. But when the strikes began 24 hours later, the camera had not yet approved the resolution, and a month later, in a draw vote, it rejected the resolution of the Senate amid the greatest concerns of a greater US military participation in the area.
In March 2011, a coalition of NATO forces, which included the United States, began a military campaign to intervene in the Libya Civil War to protect civilians. Although President Barack Obama ordered it, he did not seek the early approval of the Congress. By June, the Chamber had approved a resolution that requested a withdrawal of the US troops in the region and demanded that the administration of Obama explain why he did not ask for permission from Congress first.
In April 2017, during Trump’s first mandate, he did not seek the authorization of Congress before ordering a missile strike in Syria in response to the use of chemical weapons by the Syrian government. “It is in this vital interest in the United States National Security to prevent and deter propagation and use of mortal chemical weapons,” he said in televised comments after strikes.
Bellinger, who helped write authorizations for the military force under President George W. Bush, said it is not always the case. On January 12, 1991, the Senate voted in favor of a resolution that authorizes the use of the military force against Iraq in response to Kuwait’s invasion for Iraq, after President George Hw Bush asked him to do so. In September 2001 and again in October 2002, President George W. Bush asked the Congress to authorize the use of the Armed Forces, first in response to the September 11 attacks and then aim at Saddam Hussein and his Iraqi government.
“To hit a country like Iran, I think this goes far beyond what other presidents have done,” Bellinger said.
However, Congress may not have the appetite to fight Trump for that.
“Since many people in Congress tend to not want to reach the president or obviously some of them agree with their actions anyway,” said Curtis Bradley, professor at the Faculty of Law of the University of Chicago, in an interview, “it seems unlikely at the time Congress uses, you know, use their statutory powers to try to finish or restrict the conflict.”
It is unlikely that US courts get involved. The judicial branch has limited authority on a president when it comes to his decisions about military action and the use of force.
“The lower courts, when they get these cases, tend to say, sorry, this is very complicated,” Bradley said. “They say that political institutions and not the courts really solve.”
“Even if it is unconstitutional, I do not see that the courts are likely to be monitored,” he added.
The UN
International law, including UN letter, establishes very clearly what is and is not justified when a country decides to use force.
Article II of the UN Charter orders “all members” to solve their international disputes “by peaceful means in such a way that international peace and security and justice are not in danger.”
While a separate section of the UN letter allows military measures to be taken in self -defense, experts say, that argument will be more difficult for the Trump administration in this scenario.
“The idea that I could … attack because, in the long run, he believes that his strategic interests will be harmed do not fit the letter under the reasonable definition of anyone’s own defense,” Bradley said.
But what does a violation of the UN letter mean? Not much, experts say.
“It would not be the first time, unfortunately, where the United States is doing something that probably violates the letter,” Bradley said. “That ends up being more about diplomacy, instead of something that prevents a president from acting.”
Bellinger believes that even without any direct international or international legal consequences, the implications of Trump’s decisions are broad. “It will be more a political cost at home, and it will be more a reputation cost for the United States worldwide.”
