Trump's Unauthorized Strikes on Iran Take America's Imperial Presidency to New Heights
Khamenei's departure is nothing to mourn but regime change might require more than air strikes
On the night of Feb. 28, the U.S. and Israel initiated a large-scale military attack on Iran. Bypassing congressional authorization, President Donald Trump acted with Israeli Prime Minister Benjamin Netanyahu to strike top Iranian leadership and a variety of other targets. This action is blatantly unconstitutional. Its wisdom and morality are more debatable.
No Authorization, No Debate, No Declaration
Article I of the Constitution gives Congress the exclusive power to declare war. Debates about the extent to which presidents can initiate relatively small-scale military actions have raged for decades. But this attack is very obviously large enough to qualify as a war. That means it just as obviously requires congressional authorization. Trump didn’t get any—in fact, he did not even try to do so.
Don’t take my word for the proposition that it’s a war. Take Trump’s! He himself has called it a war, and proclaimed that the objective is regime change.
The closest historical analogue is Barack Obama’s 2011 air campaign against Libya, which was also an attempt at regime change carried out with air strikes. I criticized Obama’s action for violating the Constitution and the War Powers Act. But Iran is a larger and more powerful nation than Libya, which makes this likely to be an even bigger conflict.
After the Ayatollahs
The wisdom and morality of this action are a closer call. I am no reflexive opponent of military intervention. Regime change is sometimes justified. The Iranian regime is a brutally oppressive dictatorship that recently slaughtered tens of thousands of protesters, has a long history of promoting terrorism, and constantly seeks to develop nuclear weapons. For these and other reasons, I would welcome regime change there.
Even if the new government is far from ideal, it is likely to be less awful than regime of the ayatollahs.
But I am skeptical that regime change can be achieved with air and missile strikes alone. It does not seem like the U.S. and Israel have either the will or the capability of launching a major ground invasion. If the latter is attempted, it might turn out to be too costly to be worth it. The killing of Supreme Leader Ali Khamenei and other top Iranian officials—while welcome—will not necessary change this calculus. The regime still controls large military forces, which—if they remain loyal—can suppress opposition.
Perhaps airpower could achieve regime change if coupled with a strong opposition movement within Iran. But Trump waited until after the regime crushed the protests that arose a few weeks ago, in the process slaughtering tens of thousands. It may be difficult or impossible for a strong opposition movement to emerge again without a ground attack.
War is inherently dynamic, and it would be foolish to make definitive predictions. At this point, I can only say I am skeptical this intervention will achieve the regime change Trump seeks, or any other beneficial result great enough to outweigh the damage done to our constitutional system.
That latter is not just a technical legal issue. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military action have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents.
The Framers of the Constitution deliberately gave Congress exclusive control over the power to initiate war. As James Madison put it: “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department. ... [T]he trust and the temptation would be too great for any one man.”
One clear beneficial consequence of this action that has largely been ignored by the media so far: Iran is a major supplier of weapons to Russia for its war of aggression against Ukraine. As long as Iran is fighting the U.S. and Israel, it is unlikely to continue extensive weapons deliveries to Russia, since it will need those arms for its own use. On balance, it would have been more effective to help Ukraine by simply giving them weapons directly, which Trump has largely stopped doing. And, unlike starting a war without congressional authorization, giving arms to Ukraine doesn’t violate the Constitution, and does not expose U.S. forces to any significant risk.
This is a blatantly unconstitutional war. Time will tell whether it achieves any beneficial results that outweigh the costs—including the damage to our constitutional system of separation of powers.
An earlier version of this article first appeared in The Volokh Conspiracy in Reason.
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Even if a war with Iran was necessary (which doesn't seem to be the case) is this really the military and diplomatic leadership one would want leading it? The problem lies with the war powers act. It was intended to authorize defensive capabilities in the case of imminent threat and increasingly it is being used for loosey goosey concepts like national security (economic) interest and as long as they meet the procedural standards of letting Congress know after the fact and they can wrap up their war within 60 or 90 days they don't need anything from Congress but the money.
This is not unique to Trump this imperial "war by fiat" has been embraced by every President since Nixon. It gives them the authority to launch nuclear weapons for nondefensive purposes. It essentially erases the Constitutionally defined role of Congress. Congress has more control over the distribution of weapons to Ukraine than they have over a President deciding to drop bombs over Russian occupied areas of Ukraine.
There is no doubt that the President needs to be able to respond quickly to direct threats on the homeland or an assault on American forces overseas but this, and most of the unilateral acts of our past imperial Presidents are not that. If Congress refuses to authorize, whether for prudent or just political reasons, well that just sucks for you Mr. President.
The obsession with the merits or flaws of the Trump administration often serves as a convenient distraction from a much grimmer reality: decades of systemic Western foreign policy failure.
The primary question is why the Western foreign policy establishment, across multiple generations and parties, has consistently failed to provide a viable plan to deal with actors like Iran, Russia, or the Taliban. Not to mention Israel's persistent failures to deal with groups like Hamas, Fatah, Hezbollah, etc.
By framing every geopolitical challenge through the lens of the current US election cycle, we successfully evade a much-needed audit of the 'expert' consensus that has presided over the utter failure of Western foreign policy.