John Jefferson
When asked what the U.S. response might be to the Iranian airstrikes on Israel last week, National Security Advisor Jake Sullivan suggested it was Washington’s war, too.
“We have made clear that there will be consequences, severe consequences, for this attack, and we will work with Israel to make that the case,” Sullivan said during a press briefing at the White House.
To which Rep. Thomas Massie (R-KY) fumed on X: “Work with Israel? Excuse me, the Constitution requires you to work with Congress!”
Two days later, Sen. Rand Paul (R-KY) weighed in on the same platform. “Any offensive action by the U.S. against Iran would be unconstitutional without a Congressional Declaration of War,” he wrote.
Nevertheless, as talk turns to the kind of retaliation Israel might deliver against Iran for its 200 ballistic missile attacks (which Israel and U.S. both claim were “ineffective”), it is becoming clear that the U.S. might play a direct role. That was not refuted this week when Secretary of Defense Lloyd Austin called his counterpart Yoav Gallant (he was to meet with him in Washington today, but the confab has been postponed): “I confirmed the United States commitment to Israel’s security and shared that the United States is well postured across the region to defend Israel and protect U.S. personnel and facilities.”
Even more to the point, CENTCOM commander Gen. Erik Kurilla met with Gallant in Israel and had this to say:
We discussed ongoing Iranian-backed threats to the region and efforts to stabilize the region, ensure Israel’s security, and deter Iran’s malign and reckless activities, Before departing, I reiterated the strength of our ironclad military-to-military commitment between CENTCOM and the Israeli Defense Forces.
In back-to-back radio interviews with Brian Thomas on October 2, Massie and Andrew Napolitano expressed their concern that we may wake up tomorrow and find that the Biden administration had made the executive decision to take the nation to war. “You won’t see a declaration of war because Congress doesn’t want to embarrass itself. It’ll just look the other way while the president does whatever the hell he or she wants. And that’s, to me, just frightening,” charged Napolitano.
Unfortunately given the circumstances and recent history, Napolitano is probably right—if the administration decides to let Israel drag the U.S. into direct military action with Iran, there is little Congress or anyone else will be able, or, better yet, willing, to do about it.
The executive branch has been consolidating and reaffirming its war powers over the last several decades and has not been constrained by the Constitution nor the War Powers Resolution, which was passed by Congress in 1973 to limit the president’s ability to make unilateral decisions to take and keep the country at war.
Experts point to successive presidents who have used existing Authorizations for the Use of Military Force (AUMFs) passed for the Afghanistan and Iraq Wars to justify military operations over the last 20 years, including recent airstrikes on Iranian-backed militias in Iraq and Syria. They say presidents have abused their powers under Article II of the Constitution to enter into hostilities, which Congress, under the WPR, say he can only do to respond to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Whether the Houthi attacks on global shipping, which the Yemeni militants say will continue until there is a ceasefire in Gaza, are an imminent threat to the U.S., is up for debate. The White House claims that it is a threat to the global economy, regional security, and, once the U.S. Navy got involved and had been sporadically fired upon, American security interests too. The administration has invoked its Article II powers and filed required reports to Congress under the WPR for different strikes, including several against militants in Iraq and Syria over the last year.
This allows the administration to keep “stopping and setting” the 60-day clock for Congressional action or as experts call “salami-slicing.” The AUMFs have been used as ancillary statutory authorities if that clock runs out, as well. This was done in the Trump administration, too.
“Finding the statute” is what former State Department legal adviser Brian Finucane calls it. “Through creative interpretations of the War Powers Resolution and the 2001 AUMF and now the 2002 AUMF as well, this White House like its predecessors has been able to involve and keep U.S. troops in wars that Congress never specifically authorized,” he wrote back in January.
Other than lambasting the president in the media during the initial Yemen airstrikes in January, members of Congress on both sides of the aisle have not raised the issue in terms of forcing a vote under the WPR to declare war—or not—in the current Middle East hostilities. (An attempt by Paul, however, to bring home the approximately 900 U.S. troops in Syria using the WPR failed to pass the Senate in December.)
Outside organizations warn that “a new endless war” will be Biden’s legacy, signing a letter to the president on October 3: “We urge you to recognize and respect that Congress has not authorized military force against Iran or militias backed by Iran, and that any potential military action against Iran could only proceed following a debate and passage of a war authorization before entering our troops into any imminent hostilities in the region.” (Disclosure: The letter was signed by the author’s employer, the Quincy Institute for Responsible Statecraft).
But without a forceful response from Congress — and even then — it would seem war is the prerogative of the executive today. Constitutional law expert Bruce Fein balks at the irony.
“In 2007 while seeking the Democratic Party nomination as president, Biden shrieked on Chris Matthews’s Hardball that he would lead the charge for President Bush’s impeachment and removal from office if he attacked Iran without a prior declaration of war,” Fein told The American Conservative in an email.
“Biden, days ago, attacked Iranian missiles in collaboration with Israel with the Navy’s AEGIS ballistic missile defense, an act of war not authorized or declared by Congress. Under Biden’s own impeachment standards loudly trumpeted in 2007, Biden himself has committed an impeachable offense,” he added. “Congress should be demanding that Biden testify before Congress to explain the constitutionality of what he has already done in light of Biden’s 2007 statements as President Ford was summoned to explain to the House Judiciary Committee his pardon of former President Nixon. Congressional complacency with presidential usurpations of its war power is stunning.”
The complacency is helped along by the fact that both chambers are out of session until after the election. Numerous offices contacted by TAC on both sides of the partisan aisle Monday either did not respond or said they could not comment on the possibility of the U.S. going to war without Congressional authorization.
“In essence we were under the leadership of a king,” said the radio host Brian Thomas. “In that regard, no accountability, no representation by our elected officials, no say in the matter. We’re going to drop bombs. This has come up in the context of us doing just random missile strikes and in any given land we find somebody that we don’t like.”
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