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Constitutional Authority to Attack Iran By: Henry Mark Holzer
FrontPageMagazine.com | Friday, January 26, 2007


In President Bush’s recent speech announcing his troop buildup, he promised to interrupt the “flow of support” running from Iran to their surrogate killers in Iraq. Even though the president’s inner circle and speechwriters chose his words carefully, there is necessarily an unmistakable meaning to what he said.

American forces and intelligence agencies have long known that there is a pipeline of fighters, materiel, and money flowing from Iran to the killers on the ground throughout Iraq. This is what the president meant by “flow of support.” And it is this pipeline that he has vowed to “interrupt.”

Predictably, those who want to see America’s nose bloodied in Iraq even more than it has been already reacted quickly. Senator Joseph Biden, for example, warned the Secretary of State that an attack on Iran would “generate a constitutional confrontation in the Senate,” whatever that obvious threat was supposed to mean. Members of both parties in the House of Representatives, who apparently don’t understand Article II of the Constitution, have started to push a joint resolution that would prohibit an attack on Iran unless Congress approved. 

While Article I of the Constitution provides that Congress has the power to “declare War,” to “raise and support Armies,” and to “provide and maintain a Navy,” Article II provides that the “executive Power shall be vested in a President of the United States,” who “shall be Commander in Chief of the Army and Navy of the United States.”

 

This constitutional architecture, federal court cases that have addressed presidential war powers, and custom and practice during this nation’s entire history, leave no doubt that President Bush can interrupt the flow of support from Iran into Iraq and, for good measure, destroy, or at least immobilize, Iran’s growing nuclear capability.

 

The Constitution’s text is clear regarding the division of war powers: Congress can, if it wishes, declare war, and can fund or not fund, military operations. But it is the president who commands that military. It was President Franklin Roosevelt, as commander-in-chief, not some committee of Congress, who abandoned the Philippine Islands after Pearl Harbor, who declined to open the “second front” invasion of mainland Europe until he was ready, and who insisted on “unconditional surrender” of the German and Japanese armies.

One would think from today’s struggle for power between Congress and the president, that the war powers delegated by the Constitution have produced serious conflicts between the two branches in the past. Not so. In nearly 200 years, from about 1798 to late last century, presidents have sent—at least 130 times—troops and materiel abroad absent Congressional approval.

The last time Congress formally declared war was in December 1941, following the attack on Pearl Harbor more than a half-century ago.

Yet in the ensuing 50 years, our country has fought three major conflicts—not counting President Eisenhower’s actions in the Formosa Straits and Suez, President Kennedy’s Cuba quarantine, President Johnson’s troop deployment to Santo Domingo, President Reagan’s attack on Grenada, and the first President Bush’s ousting of dictator Manual Noriega in Panama.

The Korean “police action” lasted from 1950 to 1953, and cost some 50,000 American lives. The United States was at war, even though initially it began with an attack by North Korea on South Korea.

American troops were committed to South Vietnam’s “insurgency” beginning in 1964, and in huge numbers after that. By the time we bailed out in 1973, some 58,000 troops had died. It is not without reason that the conflict is called the “Vietnam War.”

In 1991, America and coalition forces semi-whipped Saddam Hussein in the name of Kuwait’s “territorial integrity,” thankfully with few American casualties. The conflict is called the “Gulf War.”

The combined cost in American lives of these three conflicts was nearly 100,000. The cost in dollars was billions. The United States cannot lose nearly 100,000 of its citizens and billions of its dollars and the conflict not be a war.

How, then, did we fight these wars without a Congressional declaration? What happened to Congress’s power—some think duty—to declare war for the Korean, Vietnam, and Persian Gulf conflicts?

The answer is that Congress played it safe. It gave three presidents—Truman, Johnson, and Bush (41) – something, without having to go on record as formally declaring war. In each case Congress “actively acquiesced” in the president’s conduct as commander-in-chief.

In the Korean War, Congress, while not formally declaring war, consistently supported our engagement by, among other things, approving conscription and appropriating money.

In the Vietnam War, while not formally declaring war, Congress again approved conscription and appropriated money—and went even further by giving President Johnson the questionable Gulf of Tonkin Resolution as a fig leaf.

In the Gulf War, Congress gave President Bush (41) a resolution of support, rather than a formal declaration of war.

In this active acquiescence in the war-making power of three presidents, Congress could be reasonably confident that so long as it did not expressly oppose what the commander-in-chief was doing, the Supreme Court of the United States would eventually uphold the president’s power to fight, even absent a formal Congressional declaration of war.

However, the question of whether any of these three conflicts were “constitutional” absent a formal declaration of war by Congress was never decided by the Supreme Court of the United States. Had it been (assuming the Court would have been willing to decide the question at all), Article II would have trumped Article I.

The same would have been true if the Supreme Court had ruled on the constitutionality of the current war in Iraq, because of Congress’s September 2001 Joint Resolution “Authorization for Use of Military Force” (AUMF).

The AUMF recited that its purpose was “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States”; that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”; and that accordingly

the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons. (Emphasis added.)

The reason the Supreme Court would have upheld the current war in Iraq is found in the Korean War-era case of Youngstown Sheet and Tube Co. v. Sawyer.

The year was 1952. America troops were engaged in bloody combat against hordes of Chinese Communist troops who had in late 1951 crossed the northern China-Korea Yalu River border and swept south.

In the United States, a steel strike loomed. President Truman, committed to his United Nations-sanctioned “police action” on the other side of the world and fearing a strike would cripple the war effort, ordered his Secretary of Commerce (Sawyer) to seize and operate many of the nation’s mills.

A divided Supreme Court (6-3) invalidated Truman’s Executive Order against, among other arguments, the president’s claim that his commander-in-chief power justified the steel mills seizure because of the war. Two aspects of the Court’s opinion bear directly on President Bush’s possible attack on Iran.

For the Court’s majority, Associate Justice Hugo Black wrote:

Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s law-makers [Congress], not for its military authorities. (Emphasis added.)

It is noteworthy that in Youngstown, as long ago as a half-century ago, the Supreme Court expressly recognized that the concept of “theater of war” was an “expanding” one—meaning that the conventional war paradigms of World War I and World War II, and their predecessors, had given way to less conventional military conduct in aid of newer concepts of national self interest.

 Iran—with its furious race for atomic weapons, its madman leader, and his psychotic threat to annihilate our only real ally in the Middle East—is certainly an example of that more modern understanding of what is in America’s national interest.

Moreover, the Youngstown Court rejected President Truman’s seizure of the steel mills essentially because they were private property. Although this important fact was not expressly discussed in terms of Congress’s Fifth Amendment eminent domain power, in reality the Court was saying that the President, as commander-in-chief, simply could not take private property for public use without satisfying the Constitution’s requirement that “just compensation” be paid. An attack by the United States on Iran would of course not involve a taking of private property for public, or any other, use.

But most important about the Youngstown case—and most important if President Bush decides to move against Iran without seeking a formal Congressional declaration of war—is the concurring opinion of Associate Justice Robert Jackson, former Attorney General of the United States. The Jackson concurrence in Youngstown has since then been the acknowledged analysis for weighing the relative powers of Congress and the President.

Jackson believed that the president’s powers vis-à-vis Congress, including especially his commander-in-chief power, were “not fixed but fluctuate, depending on their disjunction or conjunction with those of Congress.” From this premise, he developed a three-part analysis.

When the “President acts pursuant to an ‘express authorization’ of Congress, his authority is at its maximum.” As an example, Jackson noted that although FDR’s conduct prior to December 8, 1941 may have been questionable constitutionally, Congress’s immediate declaration of war on that date provided the President with, in the justice’s words, “maximum” authority.

Putting aside Korea, Vietnam, and the Gulf conflicts, it is instructive to look at the Iraq War.

The AUMF authorized the president to “deter and prevent,” it targeted “nations” including those that “aided” the 9/11 terrorists, and it aimed at “prevent[ing] future attacks.” Perhaps more important—certainly from the perspective of Supreme Court meddling in presidential war-making decisions—the AUMF used the word “he,” meaning the President.

In doing so, the Joint Resolution expressly delegated to the president alone the discretion to determine against whom to use force in defending the United States against international terrorism. Under this reading of the AUMF, by taking necessary steps to interdict fighters, materiel, and money flowing from Iran to Iraq, and to assure that eventually Iranian tactical nuclear weapons are not used against American interests there, here, or anywhere else, president Bush would be acting well within the AUMF’s delegation to him by Congress of the power to deter and prevent nations from making future attacks.

However, even if the Joint Resolution does not rise to the level of Justice Jackson’s “express authorization,” it doesn’t matter.

Jackson’s analysis continued. If the president acts:

in the absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia...may sometimes...enable, if not invite, measures on independent presidential responsibility.

In other words, Congressional silence—especially in military affairs, where the president wears the mantle of constitutionally delegated commander-in-chief — enables him to act unilaterally. Thus, if Congress remains silent about an attack on Iran, which so far it has, there is no doubt that under Justice Jackson’s Youngstown analysis, President Bush has the power to act unilaterally.

It is another story entirely if the president acts against the express, or perhaps even the implied, wishes of Congress. He is then, according to Jackson, at the “lowest ebb” of his power. Then, according to Jackson, the President can “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. [e.g., the President’s Article II power as Commander-in-Chief, versus Congress’s Article I power to declare (but not ‘make’) war].”

In the case of Iran, however, whatever Congress has already done to authorize the president’s actions in the AUMF, it is manifest that the legislature—unlike in Youngstown, where Jackson found that seizure was contrary to the expressed will of Congress—has done nothing to oppose military action against Iran. At least not yet.

Youngstown thus puts the democrat-controlled Congress in a difficult position.

Under the Jackson analysis, which would likely be applied by the Court today even though it would constitute judicial meddling in a war, Congress has two main choices (on the assumption that Harry Reid and Nancy Pelosi aren’t going to allow their party to expressly or impliedly authorize the President to attack Iran).

Congress can remain silent on the subject, with some of its members continuing to posture on the Sunday TV talk shows, thus avoiding commitment, in which case President Bush, wearing his commander-in-chief hat, can attack Iran in any manner he sees fit.

Or, Congress, defying over 200 years of American history, can uncharacteristically and unambiguously, oppose military action against Iran—which is what some on the Hill are now trying to accomplish through a resolution.

Even then, there are at least two reasons why President Bush should win a judicial showdown.

Under the third part of Justice Jackson’s analysis, even if Congress did oppose presidential action, that opposition must be “scrutinized with caution.” This is most true when it comes to military matters where, until the present Court and its meddling in war-fighting issues like the Guantanamo detainees and military commissions, there might be no scrutiny at all.

Assuming Congress expressly prohibited President Bush from attacking Iran, the Supreme Court would still be bound to “scrutinize with caution” the question of whether the commander-in-chief possessed that power—and in doing so, it is a near certainty that under separation of powers doctrine Article II would trump Article I.

The other reason President Bush should win a judicial showdown—aside from Youngstown, Justice Jackson’s analysis, and whatever Congress may have already done or might do in the future—is because the United States has been at war with Iran since at least 1979

 

In National Review Online (January 20, 2007), the peerless observer of Iranian affairs, Michael Ledeen wrote, in “More Needed Against Syria, Iran,” that at the time of the Iranian Revolution of 1979 “the Ayatollah Khomeini declared war on the United States.” Indeed, Ledeen reminds us that there have been attacks on “American soldiers and civilians by Iran [a nation state]…over nearly 30 years.”

 

Too many Americans have forgotten that in 1979 it was Iranians who seized the American embassy in Tehran. Since that time, it is Iran that has given aid and comfort to the terrorists responsible for September 11th, it is Iran and its surrogates that have killed Americans in Lebanon, Iraq, and around the world. It is Iran that has committed other warlike acts, even though they have involved asymmetrical tactics rather than conventional land forces. It is Iran that has acted in many other ways to subvert and attack American security.

The definition of “war” is not an esoteric one (except where it’s necessary to interpret the term’s usage in contracts like insurance policies. “War,” Webster’s is “open armed conflict between countries.”

 

Time and time again, Congress has implicitly recognized our war with Iran, albeit inadequately and in a non-military fashion. For example, Congress has appropriated funds for overt and covert operations against Iran, from radio broadcasts to CIA penetrations. Indeed, it can be said that Congress’s appropriation of funds for the Iraq War have, at least in part, been intended to fight Iran in Baghdad and elsewhere in that country. And as discussed above, a legitimate interpretation of Congress’s 2001 AUMF allows the president to attack Iran.

 

It is not a little ironic that it is democrats who fiddle while the world burns— bombastically intoning that the president’s Article II power, especially as augmented by Congressional actions, does not allow him to attack Iran—when, without express Congressional approval, it was Franklin Delano Roosevelt who violated the Neutrality Act to aid Great Britain in its near-terminal struggle with Nazi Germany, John Kennedy who attacked Castro’s dictatorship in Cuba, Jimmy Carter who launched a rescue mission onto Iranian soil in a belated attempt to rescue our embassy hostages, and Bill Clinton who lobbed harmless missiles into the Sudan and Afghanistan and dropped bombs in the Balkans.

 

While today’s democrats dither, trying to appear in favor of dealing with Iran’s growing danger to the United States (and our ally, Israel) while simultaneously being in opposition to it, we can only hope that George W. Bush will understand that he has broad military power under Article II, that he is Commander-in-Chief of the armed forces of our nation, and that he can—he must—remove the significant threat Iran poses to the United States.

 

Today, more than six decades since December 7, 1941, most of the words of President Roosevelt’s speech to Congress the next day have been largely forgotten. Several lessons can be learned from what FDR said:

Requesting a Declaration of War with Japan
December 8, 1941

Yesterday, December 7, 1941—a date which will live in infamy—the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

The United States was at peace with that Nation and, at the solicitation of Japan, was still in conversation with its Government and its Emperor looking toward the maintenance of peace in the Pacific. Indeed, one hour after Japanese air squadrons had commenced bombing in the American Island of Oahu, the Japanese Ambassador to the United States and his colleague delivered to our Secretary of State a formal reply to a recent American message. And while this reply stated that it seemed useless to continue the existing diplomatic negotiations, it contained no threat or hint of war or of armed attack.

It will be recorded that the distance of Hawaii from Japan makes it obvious that the attack was deliberately planned many days or even weeks ago. During the intervening time the Japanese Government has deliberately sought to deceive the United States by false statements and expressions of hope for continued peace.

The attack yesterday on the Hawaiian Islands has caused severe damage to American naval and military forces. I regret to tell you that very many American lives have been lost. In addition American ships have been reported torpedoed on the high seas between San Francisco and Honolulu.

Yesterday the Japanese Government also launched an attack against Malaya. Last night Japanese forces attacked Hong Kong. Last night Japanese forces attacked Guam. Last night Japanese forces attacked the Philippine Islands. Last night the Japanese attacked Wake Island. And this morning the Japanese attacked Midway Island.

Japan has, therefore, undertaken a surprise offensive extending throughout the Pacific area. The facts of yesterday and today speak for themselves. The people of the United States have already formed their opinions and well understand the implications to the very life and safety of our Nation.

As Commander in Chief of the Army and Navy I have directed that all measures be taken for our defense.

But always will our whole Nation remember the character of the onslaught against us.

No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory. I believe that I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make it very certain that this form of treachery shall never again endanger us.

Hostilities exist. There is no blinking at the fact that our people, our territory, and our interests are in grave danger.

With confidence in our armed forces- with the unbounding determination of our people—we will gain the inevitable triumph—so help us God.

I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese Empire. (Emphasis added.)

As commander-in-chief, President Roosevelt acted immediately. As commander-in-chief, President Roosevelt ordered everything possible be done to defend this country—which included military action where necessary and possible.

 

But more important than anything else FDR said in his momentous post-Pearl Harbor address to the nation—especially in light of 30 years of Iranian attacks on this country—as president of the United States, Roosevelt deemed a state of war to exist simply because of the Japanese attack on the United States. America was at war the instant the Japanese attacked. Roosevelt asked simply that Congress formally recognize that fact.

 

It may be too much to expect George W. Bush to be another FDR, but it is not too much to hope that our current President will emulate Harry Truman—who dropped two atomic bombs in order to end the war in the Pacific and prevent countless more American deaths, and who knew that the buck stops in the Oval Office.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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