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By Oona A. Hathaway
Ms. Hathaway is a professor of law at Yale Law School.
Acting on President Trump’s orders, the U.S. military conducted a strike early Sunday morning against three Iranian nuclear facilities. Few knew of the strikes in advance. Mr. Trump did not seek advance approval from Congress or the U.N. Security Council, as required by law. The unlawful strikes have thus laid bare the dangerous absence of any effective legal constraints — whether domestic or international — on the decision of the American president to use deadly force anywhere in the world.
It has become almost quaint to observe that the Constitution gives Congress, not the president, the power to declare war. Yes, the president is commander in chief of the military, but he is obligated to seek authorization from Congress before he initiates a war. The 1973 War Powers Resolution does not change this. Enacted in response to President Richard Nixon’s secret bombing campaign in Cambodia, that legislation is meant to prevent a president from launching illegal wars by legally requiring the president to seek approval of Congress before introducing U.S. armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The only case in which the president is not required to seek the advance approval of Congress is when the United States has been attacked and the president must act quickly to protect the country.
