Was the Military Strike Against Iran Constitutional?

of more than a hundred public companies. President Trump's military action against Iran faced a rebuke by the Democratic controlled House today It voted to limit his authority to strike Iran, as tensions in the Middle East remain high after a U. S drone strike killed a top Iranian general. Here's House Arms Services Committee Democratic Chairman Elliott angele, It's not the job of Congress to give any administration. It's blind trust. It's why we have separation of powers. It's why the

Constitution and trusts war power wars to Congress. Joining me is own A Hathaway, professor of international law Yale Law School and a former national security lawyer in the Defense Department's Office of General Council explain just what the War

Powers Resolution is. The War Powers Resolution is a law that was passed in nineteen seventy three by Congress after it discovered that President Nixon had been running a secret bombing campaign in Cambodia, and the Congress decided that it was important for it to reassert its constitutional role in the decision to make war, and so it passed this law, which requires the President to consult with Congress before using force, to seek its authorization before engaging in any full scale war,

and to inform Congress any time that the President puts US armed forces into hostilities and inform them within four eight hours. So would it apply to this to situation where there's no ground invasions and one military strike against one general. Well, some would say that, look, this is not such a big deal, Like this was one strike, it was relatively small scale. But this strike was not

just one strike. It was a strike against the high level government official of a country the US has been engaged in long term tensions with where everyone expected that there would be retaliatory strikes in response on US basis personnel, maybe even civilians. And it was a strike that had the potential to ignite a full scale war with Iran. Luckily it seems for the moment that that hasn't happened,

but it certainly did pose that danger. So for the President to take that kind of an action that really could have unraveled into a full scale war without even so much as informing Congress really was a pretty clear violation of the War Resolution. So in the past presidents of both parties have argued that it's an unconstitutional infringement of their authority, and today the White House issued a statement challenging the resolution, saying it's unnecessary and would lack

the force of law. The statement of administration policies and the military actions it would apply to are already authorized under a two thousand to authorization for use of military

force for Iraq. That is a pretty absurd claim. So the two thousand to authorization for use of military force was passed by the US government when Saddam Hussein was in power, and Congress gave President Bush the power to launch a war against Iraq to rid the country of the government of Saddam Hussein, who we believed had weapons of masstruction, or at least to the Administration claimed had weapons of mass destruction that posed a direct threat to

American ends and two allies in the region. Now they're claiming eighteen years later that somehow that resolution that was passed for that very particular purpose can be used to justify an attack on an Iranian general who just happened to be visiting Iraq. That just is passing absurd. Even if both the House and Senate passed the resolution, were enough votes to override a presidential veto, wouldn't Trump claim

a constitutional right to defy the resolution? And what happens then he made very well claim a right to defy the resolution. He has shown that he doesn't have a whole lot of regard for the resolution or indeed for the U. S. Constitution. And then Congress is really going to be in a difficult situation, so it doesn't have

a whole lot of options. Congress could override a veto of a resolution that seeks to prevent the president from acting, and and if it succeeded in at then I do think that that would be effective, but the chances are highly unlikely that it would override. A veto requires a two thirds vote in both the House and the Senate. And remember, of course, the Senate is controlled by Republicans, and so that would be unlikely to actually succeed in

going through. Is it also Congress's fault because with past presidents they seem to expand what they're allowed to do without Congress's approval. There's no doubt that Congress really is to blame for the situation it's finding itself in. Over the years, Congress is just set on the sidelines. It's been content to let presidents take action and do very little in response. It's happy to have the president take all of the responsibility and therefore allowed him to take

all the initiatives. And now they're finding that when the president is taking an action they don't like lo and behold, they don't have any authority or any power really to push back. And that's a real problem. They've effectively allowed their constitutional powers to atrophy, and now they're trying to resuscitate it. They're trying to bring it back, They're trying to do what they need to do to actually play

a role here. But there's no doubt there in this situation, in part because members of Congress have allowed over the years presidents to take the initiative and haven't done a whole lot in response. Today's House vote was scheduled shortly after a briefing by top administration officials on the strike that killed a top Iranian general, briefing that many Democrats and a few Republicans criticized for lacking specific justification for

the strike. Here's Republican Senator Mike Lee of Utah. It is not acceptable for officials within the executive branch of government. I don't care whether they're with the CIA, with the Department of Defense, or or otherwise to come in and tell us that we can't debate and discuss the appropriateness of military intervention against Iran. It's un American, it's unconstitutional, and it's wrong. I've been talking to Professor own a

half the way of Yale Law School. So some of the lawmakers who attended those briefings said it seemed as if the administration's attitude was a lack of concern about Congress. That seems to be the position of this administration that Congress really is irrelevant, and that's really troubling because that runs directly contrary to the constitutional order. Under the US Constitution, is Congress that has a power to declare war. It's

Congress that has a power to raise and support armies. Yes, the president is a commander in chief, but he doesn't have the power to start a war all by himself. And this president doesn't seem to recognize that. He seems to only see the commander in chief part of the constitution and when a race the rest of it. But in fact he can't do that. The constitution does require him to get Congress on board before he takes us into any significant military situation, and he just seems unwilling

to do what's constitutionally required. The administration has argued that there is an imminent threat, and many members of Congress have said that they haven't really heard anything that sounded like an imminent threat. And then today Vice President Pence said that it was not possible to share full details of the intelligence with lawmakers. So where does that leave lawmakers? Then it puts them in an impossible position because the administration is saying, Hey, if you only knew it, we knew,

you'd believe us. That's not acceptable. There are processes for briefing members of Congress in classified briefings. In fact, all the briefings that they have held have been classified briefings. Members of Congress have walked out of those briefings and said, none of this information is convincing. There are ways in which they can provide the best information that they have two members of Congress without creating any risk of leaks,

and they just haven't done it. And I think the only conclusion we can come to is they haven't done it because they just don't have it. How often have courts stepped in to disputes between President and Congress over war powers? The problem here is that courts really haven't stepped in much at all. They're very reluctant to get in the middle of a fight between the two political branches,

and in general they avoid even reaching the merits. They used two different doctrines to get away from these cases. One is called standing, which basically it says, look, members of Congress, when you try to sue, you don't have any concrete and particularized harm that has come to you. You're just feeling frustrated that you're not able to get what you want to the legislative process. You need to

go back to Congress and do it that way. And then the other one is a political question doctrine, where they say, look, this is really a political question, it's not a legal question, and therefore it's not something to be resolved in the courts, and often they use both of them at the same time. So the courts in general have really been reluctant to weigh in, and so the chances that they will do so here seem pretty slim.

Looking at the strike against ceremony, some administration officials are comparing it to the strike by Barack Obama against Osama bin Lawden. Is there a comparison to be made there? You know, this is really very different. So remember that Sama bin Laden was the head of a terrorist group. He was not a member of a sovereign nation's government.

Asama bin Laden was responsible for engineering, planning, and carrying out the nine eleven attacks that killed thousands of Americans, and it was very clear that he was responsible for those attacks. So here, Solomani has been the head of a government force in Iran, but the administration so far has not been able to point to any particular attack that he is planning or that he has underway. Osama Bin Lawden, on the other hand, was continuing to plan

attacks on Americans. There was no doubt that he had the intention of doing another nine eleven. If he had an opera tunity. So these are just very different kinds of incidents, and as a result, this one really does not have the kind of legal grounding that the President Obama's attack on bin Landon did so, how Speaker Nancy Pelosi said today, the House resolution to limit President Trump's ability to take military action against Iran is more than

justice symbolic gesture. But many people are saying that it is just that a symbolic gesture. Well, the difficulty here is if the president is really determined to act, regardless of what Congress says, this concurrent resolution probably won't stop him. What it does do is it robs him of any ability to say, well, Congress is acquiescing in what I'm doing. They're just kind of sitting on the sidelines. They don't really care, you know, if they act and they passed this,

he really can't say that. It also is an opportunity for Congress to say, we don't think that any of the claims that you might be making about the two thousand one Authorization for Use of Military Force of the two thousand to Authorization for you Similitary Force which we passed, have any basis that we're the ones who enacted those laws, and in our view, any attacks on Iran don't fall under them, and that really weakens the president's legal case.

But the truth is, if he's prepared to go ahead, regardless of how weak his legal position is, the concurrent resolution is unlikely to stop him. Will you explain how or why Congress has allowed its war powers to erode? And that's both Democrats and Republicans. I think part of the reason that members of Congress have let these powers erode is that it's not all that politically popular to

get involved in these questions. When President Obama went to Congress and said, please give me authority to take the fight to Isis, Congress just didn't really want to take responsibility for that. They didn't want to have to enact

a new authorization for use to military force. They found it really convenient to just say, keep doing the fight under the two thousand one Authorization for Use of Military Force, which we enacted right after nine eleven and which clearly most people think really doesn't apply to ISIS, a group that never existed in two thousand one in Syria, which is way far away from where al Qaeda and the Taliban that carried out the attacks on nine eleven were located.

So Congress really has sort of refused to take action. It's sort of allowed the presidents to use this law that was passed in two thousand one for all of our counter terrorism operations, and really it's refused to kind of play its role in the constitutional order. And and now it's kind of surprised that it stuck having not played a role and seeing a president really seizing the initiative.

That doesn't excuse what the president is doing. He's acting unconstitutionally, but I do think it shows that our constitutional war powers really have gotten out of whack. Thanks for being on Bloomberg Law. That's profess or own A Hathaway at Yale Law School. This is Bloomberg m