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In the aftermath of President Donald Trump’s decision to bomb three of Iran’s nuclear facilities, numerous Democrats claimed the president’s actions were unconstitutional and a violation of the War Powers Resolution.
It is a contentious and hotly debated issue not only in Congress but also in academia. Constitutional experts told us those who are claiming the president’s decision was unconstitutional may be correct according to an originalist interpretation of the U.S. Constitution. But Congresses over the last several decades have allowed presidents some latitude to engage militarily without prior consent from lawmakers.
“A lot of people over the next few days are going to argue with confidence that President Trump violated, or didn’t violate, the Constitution when he bombed Iran over the weekend without congressional authorization,” Jack Landman Goldsmith, a professor at Harvard Law School and nonresident senior fellow at the conservative American Enterprise Institute, wrote in a June 23 op-ed headlined, “Was the Iran Strike Constitutional?”
“You might think that the Constitution would provide a clear answer to such a momentous question. But it doesn’t,” Goldsmith wrote.
Although the military hostilities involving Iran, Israel and the U.S. have ended, numerous Democrats have continued to press the issue, and have proposed legislation to try to rein in the president’s military reach.
Competing Claims
Allegations that the president’s decision was unconstitutional began almost immediately after Trump made an announcement via Truth Social on June 21 that the U.S. had bombed the Iranian nuclear sites.
Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, stated in a press release on June 21 — after Trump had announced the bombings — that “the Constitution makes clear that the power to authorize war lies with Congress.”
Rep. Jim Himes, the ranking Democrat member of the House Intelligence Committee, also stated in a press release the same day that “Donald Trump’s decision to launch direct military action against Iran without Congressional approval is a clear violation of the Constitution, which grants the power to declare war explicitly to Congress.”
“This was not constitutional, it was not lawful in the absence of a declaration by Congress,” Democratic Sen. Adam Schiff said on CNN’s “State of the Union” on June 22. “And so the administration should have come to Congress. We will have a vote on a war powers resolution. But there’s a reason to bring this to Congress. And it is, you want the Congress bought in, you want the American people bought in on an action this substantial that could lead to a major outbreak of war.”
Democratic Rep. Alexandria Ocasio-Cortez went one step further, stating on X that Trump’s actions were “a grave violation of the Constitution and Congressional War Powers” and are “absolutely and clearly grounds for impeachment.”
A day after Trump announced a ceasefire between Iran and Israel on June 23, Ocasio-Cortez continued to post about Trump “illegally bombing Iran.”
“None of this [related to the ceasefire] changes my deep belief that the Constitution gives the Congress – not the President – the power to decide whether or not we send Americans into the hell of war,” Democratic Rep. Chris Deluzio wrote on X on June 24.
Democratic Rep. Jerry Nadler also posted a statement saying that he “remain[s] resolute that, regardless of the outcome, the Trump Administration’s military action against Iran was unconstitutional, as only Congress has the power to authorize the use of military force.”
It wasn’t just Democrats who raised the constitutional issue. In a response to Trump’s post about the airstrikes, Republican Rep. Thomas Massie said simply, “This is not Constitutional.”
Last week, Massie and Democratic Rep. Ro Khanna teamed up on a resolution calling on Trump to “terminate the use of United States Armed Forces from hostilities against the Islamic Republic of Iran or any part of its government or military, unless explicitly authorized by a declaration of war or specific authorization for use of military force against Iran.”
After the announced ceasefire, Massie said he told House Speaker Mike Johnson that he “wouldn’t push” the resolution “if the ceasefire holds.” Khanna added, in an MSNBC interview, “If there’s a ceasefire, that’s great. And let’s see if it holds. If it doesn’t hold, then we’re ready to have a vote on the War Power resolution.”
On NBC’s “Meet the Press” on June 22, Republican Sen. Lindsey Graham pushed back on members of Congress alleging that Trump violated the Constitution by acting without congressional approval.
Graham said Trump acted “within his Article II authority. Congress can declare war or cut off funding. We can’t be the commander in chief. You can’t have 535 commander in chiefs. If you don’t like what the president does, in terms of war, you can cut off the funding. But declaring war is left to the Congress. We’ve declared war five times in the history of America. All of these other military operations were lawful. He had all the authority he needs under the Constitution. They are wrong.”
Johnson also defended the president in a post on X. “The President made the right call, and did what he needed to do. Leaders in Congress were aware of the urgency of this situation and the Commander-in-Chief evaluated that the imminent danger outweighed the time it would take for Congress to act. The world’s largest state sponsor of terrorism, which chants ‘Death to America,’ simply could not be allowed the opportunity to obtain and use nuclear weapons.
“The President fully respects the Article I power of Congress, and tonight’s necessary, limited, and targeted strike follows the history and tradition of similar military actions under presidents of both parties,” Johnson wrote.
What the Constitution Says
Article I, Section 8 of the Constitution states that Congress holds the power “To declare War.” Article II, Section 2 of the Constitution establishes the president as the commander in chief of the armed forces. So, at what point and under what circumstances would the president need congressional approval before launching military activity?
“I think this is a tough question because practice has strayed so far from the text and original understanding of the Constitution,” Kermit Roosevelt, a professor and constitutional expert at the University of Pennsylvania Carey Law School, told us via email. “The Constitution says that Congress has the power to declare war, and the records of the Constitutional Convention are pretty clear that the drafters did not want to give one person the power to take the United States into war. (Presidents are supposed to be able to respond to attacks by using the military, but that’s not relevant to this situation because obviously we were not attacked.) So the president was not supposed to be able to start a war without Congressional authorization. That’s pretty clear. (An authorization for the use of military force is effectively the same thing as a declaration of war, so the fact that Congress has used authorizations rather than declarations after WWII does not matter.) However, presidents have done things that count as acts of war under international law without congressional authorization, like the Libya bombings [under then-President Barack Obama], and no one has stopped them, so our practice has departed from the text and original understanding.”
Peter Shane, a leading scholar in U.S. constitutional law and adjunct professor at New York University School of Law, told us via email that it is “difficult to give a definitive answer on constitutionality because there is so much disagreement about how the Constitution should be interpreted with regard to the unilateral presidential deployment of military force. For originalists, the answer would seem a straightforward, ‘No.’ Under the most persuasive reading of the Founding era, the Constitution does not authorize Presidents to deploy military force abroad without advance congressional authorization. As to Iran, there was none.
“However,” Shane told us, “presidents of both parties have operated for decades under a Justice Department framework that ‘reflects not only the express assignment of powers and responsibilities to the President and Congress in the Constitution, but also . . . the ‘historical gloss’ placed on the Constitution by two centuries of practice.’ It has thus long been the position of the DOJ’s Office of Legal Counsel that history has ratified unilateral presidential deployments of military force as long as (1) the deployment serves ‘sufficiently important national interests,’ as judged by the President, and (2) the deployment does not portend a ‘prolonged and substantial military engagement, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’ Trump’s letter to Congress reporting on the bombing relies on this framework.”
War Powers Resolution
Seeking to claw back some of its power, Congress passed the War Powers Resolution in 1973 on a bipartisan basis, and over the veto of then-President Richard Nixon. As the Congressional Research Service explains, the War Powers Resolution requires presidents within 48 hours “to report to Congress any introduction of U.S. forces into hostilities or imminent hostilities.”
Once reported, the resolution “requires that the use of forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends the time period.” Section 3 of the resolution “requires that the ‘President in every possible instance shall consult with Congress before introducing’ U.S. Armed Forces into hostilities or imminent hostilities.”
“The War Powers Act is often interpreted as saying that the President can do what he wants for 48 hours before notifying Congress, or for 60 days even if Congress doesn’t approve, so that it means the President can actually start a war and then put Congress in the position of authorizing it or not,” Roosevelt said. “That’s not consistent with the Constitution and it’s not consistent with the purpose and policy section of the WPA, which says that the intent is to make sure that the President’s power to engage in military action is exercised ‘only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.’
“So I think that the 48 hour and 60 day windows are supposed to be relevant to presidential responses to attacks, and the President is not supposed to be able to initiate wars at all. I think that if the WPA does mean that the President can start a war, it’s an unconstitutional delegation of the power to declare war,” Roosevelt said. (Emphasis is his.)
“The WPA does clearly require that the president ‘in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities’ so it seems pretty clear that Trump violated that, at least,” Roosevelt said.
Whether Trump’s decision to bomb Iranian nuclear sites was an act of war is also a matter of debate.
An opinion issued by the Office of Legal Counsel in April 2011 — after Obama began military strikes against Libya without seeking congressional approval — argued that the scope and duration of the military strikes determine whether a military action constitutes a war.
“In our view, determining whether a particular planned engagement constitutes a ‘war’ for constitutional purposes instead requires a fact-specific assessment of the ‘anticipated nature, scope, and duration’ of the planned military operations,” the opinion states, citing a prior OLC opinion from 1994. “This standard generally will be satisfied only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.”
On “Meet the Press” on Jun 22, Vice President JD Vance insisted, “We’re not at war with Iran, we’re at war with Iran’s nuclear program.”
“We have no interest in a protracted conflict. We have no interest in boots on the ground,” Vance said, adding that the bombings were “a very precise, a very surgical strike tailored to an American national interest.”
Indeed, Trump appealed for immediate peace in the same post in which he made the bombing announcement. Two days later, Trump announced the ceasefire, saying it put an end to what Trump said should be called “THE 12 DAY WAR.”
“Given past practice and the language of the WPR, I don’t think that the single strike by itself violated either the Constitution or the WPR,” Stephen Griffin, professor of constitutional law at Tulane Law School, told us via email. “At the same time, it would have been better under the Constitution for President Trump to obtain congressional authorization in advance.”
Nonetheless, said Griffin, author of “Long Wars and the Constitution,” if hostilities between Iran and the U.S. extend beyond the WPR’s 60-day limit, “President Trump may well be in violation of the WPR, just as Republicans argued when the same circumstances occurred in the Clinton and Obama presidencies.”
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