Yesterday, I wrote a column in the Hill discussing how Trump is unlikely to go to Congress in launching an attack on Iran and how he has history on his side in acting unilaterally. The column noted that many Democratic politicians and pundits who were supportive of such unilateral actions by Democratic presidents such as Bill Clinton and Barack Obama are suddenly opposed to Trump using the same power. It is the Claude Rains School of Constitutional Law where politicians are “shocked, shocked” that Trump is using the authority that they accepted in Democratic predecessors.
Democratic members are calling for impeachment, while others are declaring the attacks unconstitutional. Senate Minority Leader Chuck Schumer is particularly shocked that Trump took the action and is calling for a vote under the War Powers Act.
Schumer insisted that “no president should be allowed to unilaterally march this nation into something as consequential as war with erratic threats and no strategy.” House Minority Leader Hakeem Jeffries has issued a similar statement.
Schumer is the same politician who was silent or supportive in earlier unilateral attacks by Democratic presidents. In 2011, Obama approved a massive military campaign against Libya. I represented a bipartisan group of members of Congress challenging that action. We were unsuccessful, as were such prior challenges.
I have long criticized the abandonment of the clear language of the Constitution on the declaration of wars. Only eleven such declarations have been made in our history. That has not happened since World War II in 1942. Over 125 military campaigns have spanned from Korea to Vietnam, Afghanistan, and Iraq. It is not a rule honored solely in the breach.
Democrats were supportive when Clinton launched cruise missile attacks under Operation Infinite Reach on two continents on August 20, 1998. He ordered attacks in locations in Khartoum, Sudan, and Khost Province, Afghanistan.
The War Powers Act has always been controversial and largely ineffectual. Presidents have long asserted the inherent powers to conduct such attacks under their Article II authority as the designated Commander-in-Chief of the Armed Forces. The WPA requires the President to inform Congress within 48 hours in a written notice to the Speaker of the House of Representatives and the President pro tempore of the Senate of the action.
The WPA further bars the use of armed forces in such a conflict for more than 60 days without congressional authorization for use of military force (AUMF) or a declaration of war by the United States. There is a further 30-day withdrawal period.
President Trump reportedly did immediately notify Congress after the attack under the WPA .
Presidents have routinely ignored the WPA when it limited their ability to conduct foreign military operations. In 1999, Clinton ignored the 60-day deadline and continued to bomb forces in Kosovo. His actions were also challenged, but the court in Campbell v. Clinton just shrugged off the violation and said it was a non-justiciable political question.
In responding to the current demands, Trump could look to a curious ally: Hillary Clinton.
Secretary of State Hillary Clinton pushed for unilateral attacks during the Obama Administration. She dismissed the need to consult, let alone secure authorization, from Congress. In March 2011, Clinton testified that there was no need for such consultation and declared that the Administration would ignore a 60-day limit on unauthorized military actions.
Obama also defied the War Powers resolution on Syria. He actually did ask for congressional authorization to take military action in that country in 2013, but Congress refused to approve it. He did it anyway. Despite Congress expressly denying”authorization for the introduction of United States Armed Forces,” both Obama and Trump did precisely that.
Trump was wise to notify Congress. However, what occurs after that is anyone’s guess. The WPA and the AUMF have been paper tigers for decades and most in Congress wanted it that way. Politicians long ago abandoned their responsibilities to declare war. What remains has been little more than political theater.
Even under the WPA, Trump would have 60 days to prosecute this war and another 30 days to draw down forces without congressional approval. The court, in Campbell v. Clinton, noted that even if Clinton violated the WPA by continuing operations after the 60-day period, he was technically in compliance by withdrawing forces before the end of the 90-day period.
Trump could likely prosecute this campaign in 90 days. Indeed, if it goes beyond 90 days, we will likely be facing a potential global war with retaliatory strikes on both sides. In such an environment, it is very unlikely that Congress would withhold support for our ongoing operations.
In the meantime, the calls for impeachment are absurd given the prior actions of presidents in using this very authority. Once again, some Democrats appear intent on applying a different set of rules for impeaching Trump than any of his predecessors. Trump can cite both history and case law in allowing presidents to take such actions. At most, the line over war powers is murky. The Framers wanted impeachments to be based on bright-line rules in establishing high crimes and misdemeanors.
This is all part of the Claude Rains School of Constitutional Law. Members will once again express their shock and disgust in the use of the same authority that they once accepted in prior presidents. Trump has a great number of a risks in this action from global military and economic consequences. The War Powers Act is not one of them if history is any measure.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and has both testified and litigated in the area of war powers, including the prior representation of members of Congress. He also testified in both the Clinton and Trump impeachment hearings.