Bombing Iran’s nuclear facilities without authorization from Congress: It’s not unprecedented and the law is unclear

President Trump ordered the bombing of several nuclear facilities in Iran on June 21. The Administration cited powers granted in Article II of the Constitution to justify the legality of the strike, adding a new entry to a long-standing debate over where the constitutional authority of Congress to declare war ends and the President’s authority to act as Commander-in-Chief begins.

Although Article I, Section 8 of the Constitution grants only Congress the power to declare formal war, Presidents historically have enjoyed broad deference to command the military. Congress has declared war on only 11 foreign nations in five different conflicts and not since 1942. Instead, Presidents have ordered American military action hundreds of times during the nation’s history without prior congressional authorization.

The question of the legality of the Trump Administration’s actions in Iran hinges on interpretations of the War Powers Resolution, passed by Congress in 1973 after overriding the veto of President Richard Nixon after Nixon expanded the Vietnam War outside of an authorized use of force. Under that law, the President may only deploy forces upon “(1) a declaration of war [by Congress], (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Three such statutory authorizations of the use of force (AMUF) remain active from conflicts that have long since passed, but the White House did not cite those authorities for this attack (more on that below).

It also requires consulting with Congress: “The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities.”

In this case, it appears President Trump notified only Republican leadership in Congress ahead of the bombing, but not Democratic leadership. The intelligence agencies are required to notify the “Gang of Eight” – chairs and highest ranking legislators of the opposite party of Congress’s intelligence committees, along with the Speaker and minority (opposite party) leader of the House, and Senate majority and minority leaders – before covert action. Turning military briefings into a partisan process is a significant divergence from the norm.

If anything, Congress was misdirected. A White House official testified in March that “Iran is not building a nuclear weapon,” and Democratic Senators said that they were told more recently by the Trump Administration that Iran "was not close to building a deliverable nuclear weapon." Trump himself said in May and June that a diplomatic agreement with Iran to not develop nuclear weapons was “fairly close” (see Judd Legum’s recap).

The law also requires ending military action after 90 days unless Congress approves it, which may not be relevant in this case since the operation might be done anyway.

Some in Congress attempted to require authorization as Israel and Iran began exchanging fire. Sen. Tim Kaine and Rep. Thomas Massie introduced war powers resolutions regarding Iran days before the bombing strike to terminate any military action against Iran until the Trump Administration received congressional approval. Such resolutions are “privileged” in the Senate meaning they cannot be filibustered. Kaine’s resolution is moving forward toward a floor vote possibly today or tomorrow. Even if the House were also to approve the resolution, which is unlikely, Congress would have to override a likely presidential veto for it to have effect. Massie, a Republican, said of the bombing, "This is not Constitutional."

Even though the War Powers Resolutions have very limited potential impact on presidential action, the Executive Branch simply has rejected its constitutional claims since its passage. DOJ’s Office of Legal Counsel across several presidential administrations has asserted long-standing practices allow military action without authorization when they serve “important national interests” and do not become “prolonged and substantial” enough to resemble a war. They also have expanded the definition of military action to include defense of allies or strategic partners in a region against attack, which is what the Trump Administration asserted in this most recent case. On Tuesday, Speaker of the House Mike Johnson said he believed the War Powers Resolution is unconstitutional.

The judicial branch largely has avoided weighing in on the interbranch debate about war making authority in the Constitution, further limiting potential congressional reaction. Lower courts have typically refused to take up challenges to the use of force that lack congressional authorization. Absent any legal precedent, the question of legality of presidential action is a political debate between the Executive and Legislative Branches.

The language of congressional authorization for military force reflects the reality that not every use of force leads to a formal state of war, making the declaration of war unnecessary or undesired. In such situations, Presidents typically have asked Congress to authorize specific use of military force via resolution. President John Adams first did so in 1798, securing a resolution to allow the deployment of the Navy to defend American merchant ships from French raids. The Congressional Research Service counts about 50 such authorizations in U.S. history.

Beginning in the Cold War, congressional authorizations became much broader, applying to a specific region or defense of American or allies’ unspecified national interests. In 1964, Congress authorized the use of force in southeast Asia until the President determined “that the peace and security of the area is reasonably assured by international conditions created by action of the United Nations or otherwise,” approving full-scale American involvement in the Vietnam War without a formal declaration until its repeal in 1971. The War Powers Resolution was a response to an open-ended conflict against North Vietnam spiraling into armed intervention into multiple countries.

Three authorizations of the use of force (AMUF) by Congress remain active, including the 1991 resolution supporting the Persian Gulf War. The Senate voted to repeal that AMUF and the 2002 one authorizing the invasion of Iraq last year, but it was not taken up by the House. The 2001 AMUF authorizing military force in response to the September 11th, 2001 terrorist attacks also remains active. Presidents have used it to take action against organizations that developed well after 2001 and menaced the Middle East.

This topic wouldn’t be complete without noting that the ostensible need for military action was a problem of Trump’s own making. As Judd Legume’s Popular Information newsletter notes, there was a diplomatic solution called JCPOA that seemed to be working until Trump abruptly backed out of it in 2018.