The war against Iran cannot be lawful unless it is authorized by Congress, as the representatives of the people, acting in good faith to uphold Constitutional law and international prohibitions on arbitrary violence.
The Constitution of the United States gives sole authority to declare war to Congress. The President’s formal, legal role in military affairs in absence of a declaration of war is to lawfully administer the funding for and peacetime operations of the armed forces. The President’s only lawful authority to initiate military action is to counter an impending invasion.
For centuries leading up to the 1770s, autocrats taking Britain and other imperial nations into wars of choice had degraded public finances and the security and freedom of the people they were meant to serve. The Constitution was structured to make such dehumanizing wars for elite power near impossible. To initiate a war, the entire process of Constitutional governance should be engaged, starting with a presentation of verifiable evidence to Congress and a request for an authorization of military action.
The freedom of American citizens and their communities depends on being able to say No to self-obsessed autocratic leaders who want to sacrifice their lives without even a credible explanation as to why military action is warranted. As particular as that description sounds, it fits the majority of catastrophic wars of choice throughout history.
The Magna Carta was a response to unilateral war-mongering that emptied the national treasury and led to steep new taxes. That standard of no taxation without representation came to be a core principle of the American Revolution, centuries later. It is important to recognize that the cause of independence was not only about taxes, but about the way brazen autocracy leads to dangerous decisions that destroy personal freedoms, the fabric of life in community, and the people’s ability to favor and act on their own moral values.
Right now, we see the hapless, nihilist dictator of Russia sending hundreds of thousands of young men to be killed and maimed in an illegal campaign of war crimes that, whatever its outcome, will disgrace their nation for centuries to come. Russia’s war against Ukraine is also Putin’s war against the Russian people, some of whom have been kidnapped by security forces and sent to die in a war of aggression the dictator cannot explain or justify.
The commitment made by nearly 200 nations in the United Nations Charter never to initiate wars of aggression is binding Constitutional law in the United States. Article VI of the Constitution makes all ratified treaties “the supreme Law of the Land”. That means it stands as part of the body of Constitutional law: Congress, the Executive branch, and the Courts, are all required to abide by this prohibition on wars of aggression.
Ayatollah Khamenei led a regime that dehumanizes and brutalizes the people of Iran. In recent protests, thousands of people were killed simply for gathering in public to express displeasure with conditions in the country. Such atrocities are crimes against humanity. No regime has an inherent right to exist, and certainly not one that commits atrocities against its own people and supports terrorist attacks against civilians in other nations.
Defending Iran’s people against such abuses could seem like a plausible claim for intervention, but that argument is not being made by the U.S. government. In Venezuela, Trump ignored a United Nations report documenting more than a decade of crimes against humanity, charged Maduro with drug trafficking, made a deal to prop up the regime, and declared victory.
The current American president claims to have previously “obliterated” Iran’s nuclear weapons research and development program, and now claims this new war is an attempt do so again, months later. (He also has said this is being done “hourly”.)
He has claimed this campaign of aerial bombardment and assassinations is an attempt to force Iran into accepting a denuclearization deal that would monitor and control all nuclear energy-related activities in the country. This claim is not credible, both because he is the one who unilaterally withdrew from a deal doing that very thing during his first term and also because negotiators in talks between the U.S. and Iran said on the eve of the attack that a deal was near.
Mr. Trump claims to prefer a personalized style of diplomacy, heavily dependent on his ability to cajole, charm, and “make deals” with foreign leaders. Appealing as that may seem to his supporters, it runs contrary to the entire purpose of American government. The republic was founded on the principles of universal rights and self-government; the people are not ruled by executive fiat, but must be faithfully served by those who hold office, including by their allegiance to and cooperation with all honorable public servants.
In practical and specific terms, Mr. Trump’s own life shows his “style” often fails, leading to catastrophic consequences for business ventures, friends and allies, and those dependent on the promises he has made. In the case of Iran, even if there is some rationale related to ongoing nuclear weapons research, that would be more the result of his own miscalculation in withdrawing from the deal that was monitoring and containing Iran’s nuclear program.
There is credible and detailed reporting that Mr. Trump’s decision to attack Iran may be connected to the dependency of his family’s businesses on investment from regimes in the region that are Iran’s rivals. Whether or not this is the case, what is certain is we do not currently have sufficient clarity about these potentially illegal conflicts of interest.
It is right and reasonable to wish for the people of Iran to be free of the tyranny they have endured for decades. That does not, however, make it wise, lawful, or strategic to attack the country and attempt to topple the regime by force. Iran has a much larger population than Iraq and a more enduring and cohesive national identity. A war there could strengthen the regime and undermine forces of reform.
The President is responsible not only to the American people and the law, but to the universal expectation that legitimate leaders never fail in their efforts to protect the innocent. The killing of 168 people at a primary school for girls in Minab could have been prevented, had the administration followed a legal process, presented evidence of a lawful need for military action, sought approval from Congress, allies, and the UN Security Council, and planned properly.
Trump has said he cannot know what his future decisions might be, and that the bombs will keep falling for as long as needed. After claiming Trump’s aim is to ensure Iran cannot act as a state sponsor of terror, Sen. Lindsay Graham clarified that it is not Trump’s job to have a plan to make sure of that.
The strategic ineptitude is evident, as combat has now spread to 12 countries across the region, and it looks like a wider war is likely. The Strait of Hormuz is closed, as are key facilities in Saudi Arabia, which suggests a global energy crisis and wider economic havoc will follow.
This is why the President of the United States is not allowed by law to take the country to war without consent from the representatives of the People, through processes aligned with the Constitution and Article VI treaties. Ratified treaties and international law are essential to the legitimacy, global influence, and security of the country. That standard helped build the legitimacy of the new republic 250 years ago and in the 20th century established the U.S. as a global leader.
Under the U.S. Constitution, the People are sovereign, not the person who temporarily presides over the administrative state. The President cannot take the country to war without the explicit consent of the American people, and Congress has no legal authority to consent to a war without lawful justification.
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