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On Tuesday night, Iran fired a barrage of missiles at military bases in Iraq where American soldiers are housed, though no casualties were reported. This show of force came after days of tough talk from leaders in Washington and Tehran, prompted by a U.S. military strike that killed Iranian Gen. Qassem Soleimani,
President Trump had previously issued stern threats that the United States would “quickly & fully strike back” in response to any retaliation for Soleimani’s killing but said he took the lack of casualties from Iran’s bombardment as a sign the Iranians were “standing down.”
Despite Trump’s tempered tone, fears still linger that Soleimani’s death and Iran’s response are steps on a path of reciprocal escalation that may ultimately lead the United States to full-scale war with Iran.
While the wisdom of the decision to kill Soleimani has been hotly debated since the moment it became public, a more complex discussion has arisen in legal and political circles over whether Trump had the authority to launch the strike against him and whether the president can lead the U.S. into further conflict without congressional approval.
Why there’s debate
The Constitution states that only Congress can declare war, but formally declaring a war and taking warlike actions are different things. In recent decades the executive branch has gradually increased its authority to use military force without direct approval from the legislative branch.
Discussion of this topic can quickly get bogged down in matters that even constitutional scholars disagree on, but the issue ultimately boils down to two central questions: Do existing provisions for executive use of military force allow for conflict with Iran? If not, will anyone stop Trump if he decides to attack Iran anyway?
The Trump administration has made some effort to ensure its actions fit into current authorities. In the early 2000s, Congress granted then-President George W. Bush the power to launch the war on terror in response to 9/11 and the Iraq War. Despite the defeat of al-Qaida and fall of Saddam Hussein, those authorities are still in effect and have been used as legal rationale for a range of military actions across the globe by Democratic and Republican presidents.
A Trump administration official said the Soleimani killing was “fully authorized” under these powers. Another key distinction is whether the strike was an assassination, which is illegal under U.S. and international law, or a “targeted killing,” which is legal. Claims that the strike prevented an imminent attack, if proved to be true, would also affect the legality of the decision.
Congress has the authority to limit the amount of time the president can carry out hostilities to 60 days. House Speaker Nancy Pelosi said Monday that she would introduce legislation to shorten the period to 30 days. But any pushback from Congress would need at least some Republican support and could be subject to a veto from Trump. It could also spark a legal battle, during which Trump could continue to act as he saw fit.
With such a deeply divided Congress and the prospect of a Senate impeachment trial in the near future, experts believe it’s unlikely that any substantial limits to Trump’s ability to wage war with Iran will come from the legislative branch. The likelihood is that it will be up to the president as to how the United States will respond, if at all, to Iran’s actions.
Trump has full authority
Congress has chosen to give away its power to control military actions
“Unfortunately over the decades, on a bipartisan basis, what Congress has typically tended to maximize is its ability to push issues to the executive branch in such a way that the executive branch gets full responsibility and gives the legislative branch the full flexibility to criticize and not take responsibility.” — Defense policy expert William Wechsler to Vox
The law allows presidents to do as they see fit
“The law is not a solution for bad policy or poor decision-making. For better or worse, the United States has chosen to vest its president with extensive unilateral authority to use military force — no matter who holds that office or how that authority is used.” — Scott R. Anderson, Lawfare
Congress is powerless to stop Trump
“Proclaim as they might that Trump is again out of bounds, congressional Democrats (and the handful of Republicans with longstanding concerns about presidential abuses of power) are not in a good position to do anything about Iran policy.” — Ed Kilgore, New York
The administration keeping key intelligence private muddies the legal waters
“The problem is that governments have good reason to make very little public in this situation, which makes it very difficult to evaluate the situation politically or legally.” — Duke law professor Madeleine Morris to Yahoo News
Killing Soleimani was justified on all fronts
“President Trump’s order to take out Qasem Soleimani was morally, constitutionally and strategically correct. It deserves more bipartisan support than the begrudging or negative reactions it has received thus far from my fellow Democrats.” — Joe Lieberman, Wall Street Journal
There are limits to Trump’s authority
Democrats could temper Trump’s behavior by launching an investigation
“The deliberations that went into President Trump’s decision to assassinate Iranian general Qasem Soleimani are looking more slapdash and reckless by the hour. What we’re now seeing will require House Democrats to make a serious and sustained effort to get to the bottom of it all.” — Greg Sargent, Washington Post
Congress should repeal existing military force authorizations
“Congress and Congress alone has the power to declare war. The plain language of the Constitution is clear about that. If Nancy Pelosi wants to rein in the Trump administration — and leave a lasting legislative legacy that is worth a damn — she should reclaim that power for the legislature and guard it jealously.” — Kevin D. Williamson, National Review
Killing a foreign official is different from killing an independent terrorist
“General Suleimani, who led the Quds Force of the Islamic Revolutionary Guards Corps, wasn’t a nonstate actor. ... He was a senior figure in a sovereign government’s military. The distinction is an important one. The policy of a war designed for nonstate actors has now slipped into a conflict between nation-states.” — Karen J. Greenberg, New York Times
Killing Soleimani was a violation of international law
“The killing of Soleimani cannot be justified by the law of self-defense. ... Trump is not the first president to carry out drone killings in violation of international law. He has taken the practice to a new level of lawlessness.” — Mary Ellen O’Connell, CNN
An illegal war could be grounds for impeachment
“The Founding Fathers’ purpose in designing impeachment was to reign in any president who might assume too much executive power. As commander-in-chief, waging war legally is a primary responsibility. Doing so unconstitutionally is a textbook example of executive overreach and abuse of power.” — Jack Hunter, Washington Examiner
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Cover thumbnail photo illustration: Yahoo News; photo: AP, Getty Images