CONSTITUTIONAL INTERPRETATIONS

Last weekend, President Trump launched a massive and ongoing military offensive against the nation of Iran. At the time, there was no Declaration of War, nor any other official authorization from Congress to attack Iran. To this day, Congress has not officially authorized any military action against Iran. Prior to President Trump’s attack, Iran had not attacked the United States since 1979, 47 years earlier. If all of these circumstances continue unchanged for another 60 days, a federal statute known as the “War Powers Resolution,”, codified in Title 50 of the United States Code at Sections 1541 through 1550, requires the President to “terminate any use of United States Armed Forces with respect” to the war he unilaterally started.[1]

Congress enacted the War Powers Resolution in 1973, when the United States was ending its ten-year-long war in Vietnam. One of Congress’s purposes in enacting that statute was to prevent another prolonged involvement in a foreign war, like Vietnam, without Congress’s express authorization. See 50 U.S.C. §1541. As that section of the War Powers Resolution indicates, Congress enacted the statute to preserve and protect its own prerogative under the United States Constitution “To declare War.” See U.S. Constitution, Article I, Section 8.

Both now, and in 1788 when the Constitution was first written, the phrase “To declare war” meant “to make formal and public proclamation of hostilities against another power.”[2] In that light, the War Powers Resolution statute as a whole[3] forbids the President from launching a “war” in or against a foreign country without obtaining either an affirmative authorization for his actions from Congress, or else obtaining an extension of time from that body, within 60 days of his first military strike. By this writer’s count, President Trump now has 54 days or less either to cease armed hostilities against Iran, or else obtain an express and official authorization from Congress, see 50 U.S.C. §1544(b), whose members are mostly up for reelection this year, for his war against that country. If he fails to obtain that authorization, and also fails to cease his attacks, he should be impeached for violating his sworn duty, as President, to “take Care that the Laws be faithfully executed.” U.S. Const., Article II, Section 3. Under the United States Constitution, and the War Powers Resolution (of 1973), the decision to go to war against a foreign country belongs to the people of the United States, democratically represented by the United States Congress, not to the President.

/s/ Dan D. Rhea

[1] See 50 U.S.C. §1544(b). Under this section, Congress can extend the 60 day deadline when it does so officially.

[2] See “ ‘To Declare War’ in Declare, V., Sense 5.c.’” Oxford English Dictionary, Oxford UP, March 2005, https://doi.org/10.1093/OED/4768827202.

[3] 50 U.S.C. §§ 1541-1550.