When former Vice President Al Gore solicited campaign contributions in the White House, in violation of the federal law banning him from raising campaign contributions in the White House, he declared that “no controlling legal authority” had told him his action was illegal.
As President Donald Trump enters U.S. armed forces into a foreign conflict with Iran without congressional authority, his defense is about the same.
Presidents, going back to Thomas Jefferson, have unilaterally launched wars of various magnitudes, placing Trump in plenty of company. Calling Trump’s unauthorized war “illegal” is true but probably moot, as Jack Goldsmith laid out in an essay Saturday:
“Law is the language we use when criticizing presidential war powers—and it has been since the beginning of the nation,” writes Goldsmith, who headed the Office of Legal Counsel under former President George W. Bush. “But the truth is that there are only political constraints.”
“There are no effective legal limitations within the executive branch,” Goldsmith continues. “And courts have never gotten involved in articulating constraints in this context. That leaves Congress and the American people.”
This is tough to handle because Americans are a litigious people with a highly developed hunger for justice. Rule-breaking should and can be prevented, or at least punished and reversed. We deeply believe that. If someone steals your wallet, he should get punished, and you should get your wallet back. This is what makes a civilization.
But events sometimes bring us to the borderlands of civilization, where there is no controlling legal authority. War is one such event.
There was no controlling legal authority to stop Trump from entering the U.S. military into Israel’s long-running conflict with Iran. Nobody could credibly go to court and sue to stop it. If some 9th-Circuit Biden appointee rules the conflict illegal, that will mean nothing.
War is beyond the reach of the courts.
That does not mean the president has unlimited war powers. It means the only checks on war are democratic checks — political checks.
Congress, not Trump, rightfully has the power to enter the U.S. into a foreign war. Congress, not the courts, is responsible for enforcing its rights.
That’s why Congress, specifically the Republican majority, deserves opprobrium right now.
Congressmen, like the rest of us, have known for weeks that Trump was planning an attack on Iran. Our war fleet takes a while to sail toward Iran, and its movements aren’t secret.
A few members did try to exert their branch’s proper authority, and Republican members castigated them for it.
Rep. Mike Lawler (R-NY) wrote an X essay arguing, wrongly, that the president can wage war for 60 to 90 days, for any reason, without congressional approval. In truth, the president may only do that if he is responding to an attack on the U.S., which is not what this conflict is. But Lawler concludes that “the notion that this strike is illegal or that the President needed Congress’ authority is wrong.”
Note, though, that Lawler is attacking the very idea of Congress getting involved at all. He doesn’t say, “I have my own AUMF, which gives the President the authority he needs to wage this war against Iran.”
No, Lawler, like the leadership in both chambers, wants to stay out of this and let the president have his way, despite clear constitutional and statutory language giving Congress and only Congress the power to enter the U.S. into a war.
THE ISLAMIC REPUBLIC WAS ALWAYS DESTINED FOR ASH HEAP OF HISTORY
Congress has been steadily handing over its war powers for decades.
Blaming Congress doesn’t relieve the president of blame. Trump should have gone to Congress weeks ago to ask for authorization for the use of force. Sure, in a sense, he didn’t “need” an AUMF, but under the Constitution, the document that gives him power to command troops, starting a war is the job of Congress. It would have been proper, and it would have enforced a good but dying norm of respecting the separation of powers.