-
Click here to listen to this article - Share via
See more from the L.A. Times in Google Search. Set us as preferred
The war in Iran continues, and very few people seem to care that it’s clearly illegal and unconstitutional. What does that say about the rule of law in this country, when the president can wage a pointless war at enormous cost in dollars and human lives without authorization?
The bombings this week in Larak Island by American military forces, and the retaliation by Iran on U.S. bases in Jordan, is just the latest phase of this protracted war that began on Feb. 28 and became unlawful on May 1, when the unauthorized campaign reached its 60-day threshold, violating the War Powers Resolution, a federal law adopted in 1973 over President Nixon’s veto.
The resolution states that the president shall withdraw troops from any involvement in hostilities after 60 days unless Congress has declared war, has authorized a 60-day extension or is physically incapable of meeting as a result of an armed attack upon the U.S. The president can extend this deadline by 30 days if he certifies to Congress in writing that “unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.”
Congress neither declared war nor authorized an extension allowing the continued military action. There was no attack on the U.S. and President Trump has made no attempt to extend this for 30 days. And so, by any definition — whether American law, international law or common sense — the U.S. has been fighting an illegal war for nearly four months.
For a time, Trump appeared to actually pay attention to the War Powers Resolution, which is meant to provide a check on presidential power and to ensure that there is careful deliberation and approval by Congress before the U.S. is enmeshed in a prolonged conflict.
On April 7, he suggested that the 60-day clock under the law was stopped because there was a pause in the hostilities due to a ceasefire. But there’s nothing in the act about stopping the clock under such circumstances; the law is explicit that troops must be withdrawn 60 days after hostilities begin unless one of the exceptions in the law is met. Besides, there have been many bombings, blockades and military actions from both sides, most recently on Sunday.
Congress, too, appeared for a moment to care about the War Powers Resolution. In June, both houses passed a concurrent resolution under the War Powers Resolution directing the president to remove U.S. armed forces from hostilities with Iran. Trump simply ignored that directive and Congress has done nothing about it.
The War Powers Resolution is vital because it reinforces the Constitution’s allocation of power over warmaking. The drafters of the Constitution aimed to make sure that two branches of government were involved in any major military action. Article I gives Congress the power to declare war, while Article II makes the president the commander in chief of the Army and Navy.
The fundamental idea is for Congress to decide whether the country will be in a war and, if so, to make it the president’s role to choose how to wage it. This was expressed by none other than President Washington, who declared that “no offensive expedition of importance can be undertaken until after [Congress has] deliberated on the subject, and authorized such a measure.”
The Constitution and the War Powers Resolution exist to provide protection from exactly what we are seeing in Iran: a president waging a hugely costly war with no apparent purpose. For a time, Trump articulated his goals, including a regime change in Iran and the elimination of its nuclear capacity. It is apparent that neither will happen, but the war goes on.
There are certainly ways of enforcing the War Powers Resolution and ending this illegal war. Congress could use its power of the purse to cut off funding for it, as it did in 1971, when it prohibited federal funds from being used for military actions in Cambodia, and in 1973, when it effectively ended the Vietnam War by stopping the flow of money for it.
In the 1980s, Congress repeatedly passed the Boland Amendment, prohibiting government financial and military assistance to the “Contras,” an anti-communist rebel group fighting to overthrow the Sandinista government in Nicaragua. In 1994, Congress outlawed the use of federal money for military actions in Somalia.
The federal courts could also declare the war in Iran illegal and unconstitutional, and could enjoin the president from continuing to violate the Constitution and laws of the United States.
But neither seems likely. Republicans in Congress have shown no willingness to stand up to Trump in any meaningful way. And starting with the Vietnam War, courts have consistently refused to consider the constitutionality of presidential warmaking.
The profound question, then, is how are we a nation under the rule of law if there is nothing to stop the president from violating the Constitution? The answer is frightening, but that is exactly the failure revealed by the ongoing illegal war in Iran.
Erwin Chemerinsky is the dean of the UC Berkeley School of Law.
Insights
L.A. Times Insights delivers AI-generated analysis on Voices content to offer all points of view. Insights does not appear on any news articles.
Viewpoint
Perspectives
The following AI-generated content is powered by Perplexity. The Los Angeles Times editorial staff does not create or edit the content.
Ideas expressed in the piece
- The article argues that President Trump’s military campaign in Iran is clearly illegal and unconstitutional because it has continued well beyond the War Powers Resolution’s 60-day limit without any declaration of war, statutory authorization, or valid emergency extension from Congress.[1][4][6]
- It further contends that Trump’s decision to ignore a concurrent resolution passed by both the House and Senate directing the removal of U.S. forces from hostilities with Iran underscores a breakdown in the rule of law, since Congress has formally expressed opposition yet taken no effective steps to enforce its will.[4][5]
- The piece emphasizes that the War Powers Resolution was designed to reinforce the Constitution’s allocation of war powers—Congress deciding whether the nation goes to war and the president serving as commander in chief in carrying out that decision—and that unilateral warmaking undermines this carefully constructed balance.[1][6]
- Drawing historical parallels, the article points to past instances when Congress used its power of the purse to end or limit conflicts, such as cutting funds for Cambodia and Vietnam or restricting aid to the Contras and operations in Somalia, and suggests similar measures could be used to halt the current Iran war but have not been pursued with conviction.[6][7]
- The piece also highlights that federal courts have long been reluctant to rule on the constitutionality of presidential warmaking, especially since Vietnam, and argues that judicial inaction combines with congressional passivity to leave no meaningful check on a president who chooses to wage a costly, purposeless war.[3][4]
- Ultimately, the article suggests that the ongoing conflict in Iran—described as hugely expensive in dollars and human lives, with goals like regime change and eliminating Iran’s nuclear capacity now seen as unattainable—reveals a frightening failure of the United States to function as a nation under the rule of law.[2][3][7]
Different views on the topic
- In contrast, administration lawyers and some constitutional scholars argue that Article II of the Constitution grants the commander in chief broad authority to initiate limited military actions without prior congressional approval when necessary to protect U.S. national interests, including preventing nuclear proliferation or responding to anticipated threats.[2][6][7]
- Building on this view, White House officials have cited the president’s inherent Article II authority and responsibility for foreign relations to justify strikes on Iranian targets, asserting that such actions fall within accepted presidential powers even in the absence of specific statutory authorization.[2][6]
- At the same time, opponents of the Iran war powers resolutions in Congress contend that concurrent resolutions directing the president to withdraw forces do not have the force of law because they are not sent to the White House for signature or veto, framing recent votes as expressions of congressional sentiment rather than binding legal commands.[4][5]
- Moreover, some Republican leaders and allies argue that Trump “made the right call” by ordering attacks on Iran, describing the strikes as necessary and politically justified responses to security concerns, even as they acknowledge that the underlying legal questions remain contested.[7]
- In addition, several commentators note that the legality of unilateral presidential military action has been hotly debated for decades, and they point out that past presidents of both parties have stretched or sidestepped War Powers requirements, which in their view makes the current dispute part of a broader, unresolved struggle over the scope of executive war powers rather than a clear-cut violation.[1][4][7]
- Finally, international law experts who criticize the Iran strikes as incompatible with the United Nations Charter nonetheless distinguish between legal assessments and policy judgments, observing that some policymakers regard the campaign as serving legitimate strategic objectives despite its questionable status under both U.S. and international law.[3][7]
More From the Los Angeles Times
Podcasts
In this episode, we bring you the update on how an Altadena resident and her neighborhood are coming along, plus a re-run of the two-part series we did on the Poppyfields people back in June.
California once bet big on offshore wind to help power its clean-energy future, but the Trump administration is now paying developers billions to walk away from their projects. As California’s remaining offshore-wind leases hang in the balance, the state is fighting back in court.
The Hillside Strangler murders terrorized Los Angeles in the late 1970s. The killers were a pair of sadistic cousins. One confessed. The other was set to stand trial—until L.A. prosecutors flinched.
