The Constitution clearly grants Congress, not the president, the power to declare war. Thus, most defenders of President Donald Trump’s unauthorized war against Iran point to the 1973 War Powers Resolution and claim the law allows the president to wage a war for 60 days without any congressional approval.
Here’s a Republican member of Congress making this false claim:
This common view is rooted in a very basic error of understanding caused by careless reading.
Let’s start with the crucial part of the law, from Section 2:
“The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
If you think Trump is within his rights to launch his Iranian regime-change war, read that passage from Section 2 again.
It lays out the only three possible situations in which the president can introduce our troops into a new war. The first two situations involve explicit congressional approval: either a war declaration or something like an authorization for use of military force.
The third case is the only case when the president may, without prior authorization from Congress, introduce our military into hostilities: “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
I promise you. Read the paragraph again. The word “only” is in there. That means if there’s no (1) declaration of war or (2) AUMF, the president can only start or enter us into a war if we were already attacked.
This goes back to Founding Father James Madison’s insistence that the Constitution “leav[e] to the Executive the power to repel sudden attacks.” The War Powers Resolution codified this power that had been implied by Articles I and II of the Constitution, which gave Congress alone the power to “declare war,” and made the president the commander in chief of the military.
If the Chinese fighter jets are flying here to bomb San Francisco, the commander in chief can’t be left to wait for both chambers to assemble and vote. (This was especially pressing in the 18th century when assembling Congress might take days.)
So whence this notion that a president gets 60 days of free war?
Read down a little bit, and you’ll understand this confusion.
Section 4 of the law lays out mandates on the president in case he introduces troops into war or the edge of war, “In the absence of a declaration of war.” From Section 2, we know he may only do this if we have been attacked or are about to be attacked.
In such a case of repelling an attack, Section 4 lays out that the president must (1) make a report to Congress within 48 hours explaining why the war was necessary and (2) get congressional approval within 60 days or withdraw all the troops.
Again, these Section 4 mandates on the president apply only when Congress hasn’t declared war. But the president isn’t allowed to wage war without congressional authority except for repelling an attack.
W. JAMES ANTLE — OCCUPATIONAL HAZARDS: HOW TRUMP CAN AVOID ‘FOREVER WAR’ IN IRAN
The 60 days of free war for the president apply only in the case of “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
The Trump administration will try to argue either (1) Iran was about to attack us, or (2) the War Powers Resolution was unconstitutional. Those are trickier arguments. The 60-day free war claim is just flat wrong when it is a war of choice.