Was Trump's bombing Iran constitutional?

It's impossible to say for sure, but it was at least as constitutional as similar or more forceful deployments of the military have been for three generations.

It took the Democrats and a few Republicans very little time to accuse the President of acting unconstitutionally in ordering the bombing attacks against three of Iran’s nuclear facilities.

At the outset, let me say that, in my view, only a portion of these accusations are sincere. Many of them are made for the same reason the Left and some libertarians have criticized the United States for anything and everything: They dislike the country; think it’s a blight on the world; consists of little more than the shadow of slavery, racism, and imperialism; and deserves the reckoning its enemies aim to supply. This was a big part of the reason that, for example, the Iranian seizure of the American embassy in 1979 never drew military punishment from the Carter administration. It wasn’t just that Carter was cowardly and incompetent. It was, in addition, and perhaps primarily (although tacitly), that Carter shared his party’s dim view of America, and hence America’s right to defend itself even in the clearest imaginable instance of its right to do so. So if the embassy staff rotted in Iranian captivity for more than a year, well, better that than return to “endless war” — a phrase that’s now making a big comeback with Democrats and isolationist Republicans like the appalling Thomas Massie.

Still, for as reprehensible and dishonest as the motives for questioning Trump’s action may be in many cases, the question for those of us who believe in the rule of law remains: Was the decision to bomb Iran without either a declaration of war or at least some sort of prior approval by Congress consistent with the Constitution?

Unfortunately, the answer isn’t written in the back of the book. Indeed, there isn’t even a book. As Prof. Jack Goldsmith of Harvard Law observes in his thoughtful essay:

You might think that the Constitution would provide a clear answer to such a momentous question. But it doesn’t. Or you might think I would know the answer, since I…have written about it for decades; and I served in the Office of Legal Counsel that is the storehouse of executive branch legal opinions on the topic, one of which has my name on it. But I don’t know the answer.

I don’t know the answer because I do not think there is anything approaching a settled or clear normative framework for analysis.

If Jack Goldsmith doesn’t know that answer, I can promise you I don’t either.

Still, there is a good deal to say about it, and most of it seems to me to cut against the attacks on Trump even when made in good faith.

The Constitution gives Congress many war-related authorities, most notably the power “[t]o declare War,” “raise and support Armies,” and “provide and maintain a Navy.” And Article II says the president “shall be Commander in Chief of the Army and Navy of the United States.” There has been a massive debate since the founding about what these provisions mean and how they are supposed to operate….

The framers worried about the president using force unilaterally (and self-servingly) to bring the nation into war in ways that did not serve the national interest. But it is not at all clear how they grounded that concern in constitutional text. One plausible interpretation of the constitutional provisions is that the primary constraint came in Congress’s control over appropriations and the standing military, not the declare war clause. On that theory the Iran strike would be lawful since the president deployed the tools that Congress gave him without constraint.

While I’m sympathetic to that view, I think it paints with too broad a brush in this instance. It’s extremely unlikely that any recent Congress passed military appropriations with even a vague expectation that they would be used to hit Iran with the kind of force Trump employed. [UPDATE: But see the comment below by former Department of Energy General Counsel and Associate White House Counsel Lee Otis]. Trump himself did not do so after he first took office eight years ago, and Joe Biden………………..oh, never mind.

Congress over the centuries authorized standing military forces on a larger and larger scale, equipped those forces with more and more powerful weapons, and rarely put affirmative constraints on the president’s use of military force. As Congress did these things, presidents used these military forces abroad without congressional authorization more and more aggressively, both offensively and defensively, scores and scores of times.

Some of these unilateral uses of force were very consequential—for example, in the last 75 years, North Korea (1950), Panama (1989), Kosovo (1999), Libya (2011), and Soleimani (2020). And while many members of Congress complained in response to many uses of force, Congress exercised its constitutional authority to shut them down only a handful of times (for example, in Vietnam in 1973, and in Somalia in 1993). Congress also tried but failed to slow presidential war unilateralism in the Swiss-cheese War Powers Resolution that does not constrain a president in the first 60 days of “hostilities.” For the most part Congress as an institution has gone along with presidential war aggrandizement.

That’s all to the good from Trump’s point of view, and a serious argument, but still begs the question whether Congress’s acquiescence rises to the level of constitutional significance.

Prof. Curt Bradley of Duke Law School has suggested that it does, or so Goldsmith argues:

Bradley argues that practice “supports the executive branch’s claim that limited military engagements that are not expected to be protracted in duration or to involve the commitment of substantial ground troops need not be authorized by Congress.”

But then comes the “on-the-other-hand” part:

Perhaps so, but I seriously doubt (and I think Bradley would agree) that the gloss argument for the constitutionality of such “limited military engagements” would extend to the Iran strikes.

But why not? At the heart of the doubts about Trump’s constitutional authority is the memory, and the fear, of thousands of “boots on the ground” with no plan and no end in sight — basically, the ghosts of years of dead soldiers coming home from Vietnam and Iraq. I see those ghosts as well, as almost everyone of my generation does, but ghosts are still just ghosts. It’s hardly a prudent measure, and still less a constitutional argument, to think that the next conflict will be like the last one. Thus far, no American soldier has been killed or wounded in this conflict, which has lasted all of four days, with a cease-fire (of what validity we don’t yet know) announced just a few hours ago.

Goldsmith concludes:

If you credit executive branch practice [over decades], I do not see on what basis you say that the Iran strikes are unlawful. Do you distinguish Iran from Korea, Kosovo, Libya, and the Soleimani strike? The Kosovo and Libya uses of force killed many and contributed to regime change in contexts (primarily, humanitarian intervention) where U.S. national security interests were weaker than in Iran. And why is it lawful to target and kill General Soleimani but not go after Iranian nukes? Do you say that some or all of those precedents are illegitimate? On what basis? Why do you draw the line between legitimate and illegitimate practice where you do? Everyone has his or her favorite theory, but they all are contestable.

I’m not the scholar Jack Goldsmith is, and instead have my own hayseed theory about how the question will get “decided.” It won’t be in Congress or a court of law. It will be in the court of public opinion and, specifically, whether majority opinion turns out to be that the Iranian nuclear threat was real and that our bombing succeeded in thwarting it. In other words, it will be settled the same way the knotty constitutional question of secession was — by who wins on the ground.