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President Donald Trump’s decision to order a strike in Iran is the latest example of the most consequences he has made as commander, without first seeking Congressional approval. And experts say that while his power over the US military is not absolute, lawmakers will rarely do it.
Trump is due to submit legal justification to Congress that he bombed Iran’s nuclear facilities within 48 hours of the operation’s launch. Unlike the concrete outcomes Trump faced against other moves that tested the boundaries of enforcement, such as a court ruling against him, the prices he may pay for this decision will revolve primarily on the American political stage and the world stage where the US reputation is.
“The president over the past 25 years has certainly used his strength by stretching the envelopes of the presidential authorities,” John Bellinger, assistant senior fellow for International Security Law at the Council of Foreign Relations, told NBC News. “Without the power of Congress, we will be increasingly deploying the military, and Congress, along with some sustained opponents, is simply acquiesced within it.”
Limitations on presidential forces using military force are listed in sections of the US Constitution, the 1973 War Power Resolution, and the UN Charter.
Article 1 of the Constitution makes this clear. Congress – and other parts of the federal government have no authority to declare war. But that’s what Congress hasn’t officially done since World War II for over 80 years.
Congress approved what is called the approval of military power and allocated funds to support ongoing conflicts, but while the power of the presidential office has expanded, the nation’s ability to control when it is at war has diminished by its own actions.
The 1973 Forces Resolution is a law designed to provide a check on the president’s authority to engage the United States in military action without Congress’ consent. It was passed over President Richard Nixon’s veto in the wake of the Vietnam War. The Vietnam War, although Parliament never actually declared it a war, granted power in a resolution in the Gulf of Tonkin.
According to the War Power Resolution, when a war has not been declared “in any case, the US military was introduced,” the President will notify the Protemporé of the House Speaker and Senate for 48 hours in writing. The Act requires that the notice includes the reason for the president filed the lawsuit, the underlying authority, and “estimated scope and duration of hostility or involvement.” The resolution also states that whenever the President uses the military without prior notice to Congress, its use must be terminated within 60 days.
Bellinger said Trump’s notice to Congress would likely be prepared by the Justice Department, and would likely rely on authorities granted to the president under Article 2 of the Constitution, making him the president the commander. President Joe Biden cited Article 2 in 2021 after ordering strikes in Iraq and Syria.
President’s Test Limits
Congress has acted after the US withdrawal from Vietnam to restrain the president in its use of military force, but in recent decades we have seen the president oppose their detention.
On March 23, 1999, the Senate approved the NATO airstrikes against Yugoslavia at the time to force Serbia to withdraw from Kosovo. However, when the strike began 24 hours later, the House had not yet approved the resolution, and in a Thai vote a month later rejected the Senate resolution amid rising concerns about an increase in US troops’ involvement in the region.
In March 2011, a coalition of NATO forces, including the United States, launched a military campaign to intervene in the Libyan civil war to protect civilians. President Barack Obama ordered it, but he did not seek prior approval from Congress. By June, the House had passed a resolution calling for the withdrawal of US troops from the region, demanding that the Obama administration explain why it initially refused to ask Congress for permission.
In April 2017, during Trump’s first term, he did not seek Congressional permission before ordering missile strikes in Syria in response to the use of chemical weapons by the Syrian government. “It lies in this important national security interest for the United States to prevent and block the spread and use of deadly chemical weapons,” he said in a post-strike television statement.
Bellinger, who drafted the recognition of military force under President George W. Bush, said that wasn’t necessarily the case. On January 12, 1991, the Senate voted in favor of a resolution allowing the use of military force against Iraq in response to Iraq’s invasion of Kuwait after President George HW Bush asked him to do so. In September 2001 and October 2002, President George W. Bush first asked Congress to allow the use of the military to target Saddam Hussein and his Iraqi government in response to the September 11 attacks.
“I think this is far beyond what other presidents have done to attack countries like Iran,” Bellinger said.
But Congress may not have the desire to fight Trump.
“Considering that many people in Congress have a tendency to either not want to overthrow the president or agree to his actions anyway,” said Curtis Bradley, a professor at the University of Chicago Law School.
It is unlikely that US courts will be involved either. The judicial division has limited authority over the President regarding his decisions regarding military action and use of force.
“The lower courts tend to say, when they receive these cases, they’re sorry, but that’s very complicated,” Bradley said. “They say that it really should be resolved by political institutions, not by courts.”
“Even if it’s unconstitutional, I don’t think there’s a high chance that the court will be policed,” he added.
united nations
International law, including the UN Charter, was justified when a country decided to use force and very clearly shows what is not justified.
Article 2, “all members,” of the United Nations Charter, “mandates international conflicts to be resolved by peaceful means in a way that does not put international peace, security and justice at risk.
Another section of the UN Charter allows military action to be carried out in self-defense, but experts will argue that the Trump administration will be difficult to carry out in this scenario, experts say.
“In the long run, I think your strategic interests will be harmed, so I think the idea that you can just attack doesn’t fit the charter under anyone’s reasonable definition of self-defense,” Bradley said.
But what does violate the UN Charter mean? Experts say.
“Unfortunately, this is probably not the first time the US has done something that violates a charter,” Bradley said. “It’s not going to stop the president from acting directly, it’s more about diplomacy.”
Bellinger believes that Trump’s decision is broad, even without direct national or international legal consequences. “It would be a political cost at home, and it would be a more popular cost for the US around the world.”
This article was originally published on nbcnews.com. Read more from NBC News:
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