President Donald Trump’s strikes on nuclear strongholds in Iran have prompted debate about presidential war powers and whether Congress should have been given more information and oversight ahead of the surprise attack.
The War Powers Resolution, enacted in 1973, gives the president the ability to carry out certain military actions before requesting congressional approval. However, it is also supposed to keep the commander in chief’s power in check. For instance, the president must notify Congress of any military actions within 48 hours, and armed forces are not allowed to remain in a region of conflict for more than 60 days without congressional approval.
Congress itself has not formally declared war since World War II. Since then, the Korean War, Vietnam War, and campaigns in Afghanistan and Iraq were all initiated or escalated by the presidents at the time before the approval of Congress.
Here is when the president is allowed to invoke military action before notifying Congress.
Actual or anticipated threats
The war powers legislation grants presidents the power to use defensive military force in light of actual or anticipated threats to the United States. Democrats are questioning whether the Trump administration had exhausted all other options before using military force and if the threat from Iran was imminent enough to justify the strike.
Some members of Congress affirmed the worry that caused Israel to strike Iran in the first place. Before Trump’s missile strike on Iranian nuclear facilities on Saturday, Israel also hit some Iranian nuclear targets on Thursday with the goal of beginning the depletion of Iran’s supply. Sen. Mark Kelly (D-AZ) acknowledged the possibility of harm to the U.S. from Iran’s then-growing nuclear program.
“I would say when there’s a clear and imminent threat to U.S. citizens, to the United States, to the homeland, the commander in chief has a right to act,” Kelly said Sunday on NBC’s Meet the Press.
While the belief that Iran posed an imminent threat spread throughout America and Israel, not all U.S. lawmakers agreed. Rep. Jim Himes (D-CT), ranking member of the House Intelligence Committee, for example, in a statement called Trump’s actions “a clear violation of the Constitution.”
Advancing national interest
Trump’s allies say depleting Iran’s nuclear program advances national and even international interests by increasing America’s safety. The FBI has a page on its website called “The Iran Threat,” detailing cybersecurity, intelligence, and terrorist threats from Iran.
Emily Harding, director of the Intelligence, National Security and Technology Program at the Center for Strategic and International Studies, said Iran’s main interest is keeping its regime going, rather than retaliation. She predicts that, in this instance, the Iranians will be all bark and no bite.
“Iran’s leaders are more cautious than their bellicose rhetoric would suggest,” Harding said. “Their primary interest is survival, specifically the survival of the revolutionary regime.”
Trump floated the possibility of regime change after posting on Truth Social about it Sunday.
“It’s not politically correct to use the term, ‘Regime Change,’ but if the current Iranian Regime is unable to MAKE IRAN GREAT AGAIN, why wouldn’t there be a Regime change???” Trump said in the post.
‘Declare war’
No president has ever officially declared war on his own. Because Article I of the Constitution, which gives Congress the power to declare war, does not clearly define what declaring war entails, there is no single definition of the phrase, and Congress and the courts have not attempted to set one. The anticipated length of the military engagement and the means of carrying it out are two important factors when considering whether the U.S. is declaring war.
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Former presidents, such as both George H.W. Bush and George W. Bush, asked for congressional approval before moving into military conflicts in the Gulf War and campaigns against Saddam Hussein after Sept. 11, 2001, respectively. The U.S. has not declared war on Iran, despite its use of military force against Iran on Saturday.
Trump as commander in chief
The Constitution’s most vague allotment of military power for the president is the commander in chief clause, which is written into Article II of the Constitution. Former Supreme Court Chief Justice Roger Taney laid out the powers of the commander in chief in 1850 as involving the direction and employment of military movements to “harass and conquer and subdue the enemy” in the best way possible.
Only when invoking the War Powers Resolution of 1973 can a president use military force ahead of congressional approval, if the engagement falls within the time limits and threat-related parameters of the law. The commander in chief still needs congressional approval to continue a military engagement beyond 60 days. However, once Congress has declared war, the president is able to make strategy-based moves without any further input from Congress.
Recently, Reps. Thomas Massie (R-KY) and Ro Khanna (D-CA) introduced the Iran War Powers Resolution, which would revoke any previously existing presidential war powers and withdraw America from the Middle East conflict involving Iran. The Massie-Khanna resolution would redirect the sole power of declaring war back to Congress for this and all future conflicts.
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House Minority Leader Hakeem Jeffries (D-NY), when asked about the resolution, did not appear to show much enthusiasm.
“I haven’t taken a look at it,” he said Monday.