Recent events have highlighted a pertinent topic: the unrestricted employment of American military power, exemplified in the last month’s U.S. armed forces attack on nuclear sites in Iran, directed by President Donald Trump. Saikrishna Prakash, a legal historian at the University of Virginia, finely encapsulated the issue by stating, ‘no other realm has seen the presidency’s accumulation of power and Congress’s degradation as complete.’ Notably, while Democratic and Republican presidents have shown great variances over domestic affairs, there’s been a consistent erasure of checks and balances in deploying military power. No considerable contention exists that the Constitution permits presidential authority to instigate an unprovoked attack on a sovereign nation without reliable legislative authorization claims.
Prakash’s 2020 work, ‘The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers,’ elaborates on this topic, revealing that the current connotations attached to executive war powers deviate considerably from the founders’ intentions. According to the Constitution, Congress has the power to decide whether the nation enters a war, and the president, as the commander-in-chief, remains subordinate to Congress. The contemporary stance of the Justice Department, however, suggests a president ‘may’ need pre-approval for ‘prolonged and substantial military engagements,’ leaving room for ambiguity.
It is critical to note how John Yoo, a Law Professor at UC Berkley, puts forth an unfounded argument, claiming that the presidency holds absolute discretion in deploying military power, barring when Congress stands in wake of providing funds. The path towards the current constitutional consensus is far from simple and it commences at acknowledging the two legal structures governing our military potency – a domestic and an international system, each operating under distinct rules. There can be enactments of force that are constitutional while being in contravention to international law, and vice versa.
Scott R. Anderson, a previous State Department Lawyer, shed light on the International Law, explaining that both customary International Law and the UN Charter generally negate the ‘threat or use of force against the territorial integrity or political independence of any state.’ Exceptions exist in case of self-defense or when a United Nations Security Council resolution authorizes military action. The recent U.S. bombing of Iran didn’t fit in these criteria, as there was no imminent threat. The only plausible argument for this action was a collective self-defense of Israel.
However, an international law debate does not answer the domestic law question. In line with Prakash’s view and many other scholars, the proper constitutional interpretation would necessitate the provision of a legal rationale for the Iran bombing, corroborated by prior legislative authorization at the executive level. The officially declared war need not be the form this legislation takes, as this would possess national and international legal consequences that Congress might choose to avoid. Statutes may provide such authorization.
Since 2001, to authorize military attacks, administrations from both sides have leaned on the Authorization to Use Military Force against al-Qaeda and its allies. This strategy has been stretched to cover military operations against terror groups that were non-existent in 2001. However, the case of Iran shows no explicit ties to al-Qaeda, and no other type of legislative authorization was in place prior to the recent bombing.
Under an originalist interpretation of the Constitution, the bombing’s illegality appears clear-cut. However, throughout the country’s history, and especially since the Korean War, Congress has often consented to the one-sided application of military force by the President. The Supreme Court has frequently looked to governmental practice—in addition to or instead of constitutional text—to determine what is deemed permissible.
The Department of Justice’s Office of Legal Counsel (OLC), advising President Barack Obama over Libya’s bombing in 2011, articulated this sentiment by commenting that its understanding of presidential constitutional authority reflected not just the explicit division of duties and powers to the President and the Congress enshrined in the Constitution, but also the ‘historical gloss’ placed by the practice of two centuries. The gloss referred to only two constitutional constraints on the presidential authority over military force, where Congress is silent: the exposure of U.S. troops to significant risks over an extended period unless a hostile action or actual invasion takes place, and the evaluation whether deployment significantly serves national interests and foreign relations.
During the first Trump Administration concerning U.S. strikes against Syria associated with a chemical warfare program, OLC reasserted this framework. The ‘national interests’ test quite conveniently included protection of U.S. persons and properties, aiding allies, supporting the United Nations, and promoting regional stability as these interests have been traditionally justified by past leaders. The formal letter from Trump to Congress with regards to the Iran bombing followed this pattern, declaring the military action was to advance essential national interests and support Israel by eliminating Iran’s nuclear program.
The extent of the assumption of the presidential authority in the use of military force gained momentum during the Vietnam War and was justified partly by the Gulf of Tonkin Resolution and partly by a reinterpretation of our constitutional framework. In a 1966 memorandum, State Department Legal Advisor Leonard Meeker delved into an inherent presidential authority, put forth by the founding fathers, to respond to invasions before Congress could take any action. He expanded this argument, suggesting that a modern-day president should possess the power to counter equivalent threats when operating in a globalized world.
Congress tried to regain its authority in war-making by approving the War Powers Resolution in 1973, which aimed at a stricter interpretation of the President’s authorities as stated in Article II. It imposed consultation and reporting requirements on the commander-in-chief upon the introduction of U.S. forces into hostilities and required an exit strategy within 60 days unless his authority was extended by Congress. Despite the addition of detailed clauses, the Justice Department used the WPR to confirm its broad interpretation of presidential authority.
Despite its essence, presidencies labeled as being against international invasions, such as Barak Obama’s, adopted a broad interpretation of presidential war powers. The Reiss Center on Law and Security at the NYU School of Law maintains records of all reports given to Congress under the War Powers Resolution, and the list of letters points to a propensity of Democratic presidents in unilaterally deploying military force.
Over the years, the definitions and interpretations of ‘hostilities’ have been stretched to suit the sitting president’s military initiatives, undermining the very essence of the War Powers Resolution and in turn, the Constitution. The originalist school of thought centered around informed decision-making by three elected institutions: the House, the Senate, and the President prior to military deployment. As George Washington once wrote, ‘No offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.
The arguments favoring executive unilateralism often point towards how technology and global interconnectedness can quickly transform distant events into acute threats to our national security. However, the consequences of hurried, unilateral decisions are also magnified due to these same reasons. The United States currently lacks a clear strategy to escape from its prevalent institutional inefficiency.
Ultimately, belligerent presidencies will continue to disregard the constitutional originalism of war powers without any substantial institutional constraints. Politics, the only remaining deterrent, is not an effective mechanism for slowing, let alone stopping, a president determined towards military aggressiveness. Thus, while the constitutionality of certain military maneuvers, such as bombing Iran, may seem unequivocally unconstitutional to the framers, no authority in 2025 treats the originalist viewpoint of war powers with sincerity.
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