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President Donald Trump thrust the United States into a war against Iran last weekend without bothering to secure congressional approval or even pretending to identify a legal basis for his actions. This administration, of course, has already declared a freewheeling authority to commence hostilities in foreign nations without a green light from the legislative branch. But this new conflict pushes Trump even deeper into dictatorial territory: He now asserts a freedom to disregard constitutional limits on his war-making authority and thrust the country into a potentially protracted military campaign that will only end on his say-so. This theory of executive supremacy leaves American armed forces at the whim of one man—a total inversion of our constitutional design.
On a special Slate Plus extra episode of Amicus, Mark Joseph Stern spoke with Eugene Fidell about Trump’s startling claim of unilateral war powers. Fidell—a visiting lecturer and senior research scholar at Yale Law School and expert on the law of armed conflict—has argued that the president’s actions constitute not just a flagrant abuse of office but an impeachable offense. A preview of their conversation, below, has been edited and condensed for clarity.
Mark Joseph Stern: Trump’s attack on Iran is different from his recent military action in Venezuela; this time, he is openly calling it a war, which it clearly is. So the first question is: Under the Constitution, does the president have the power to declare war?
Eugene Fidell: The answer, of course, is no. The Constitution has always provided that the power to declare war is vested in Congress. You either have a declaration of war, which we haven’t seen since the day after Pearl Harbor, or its equivalent, which is an authorization for the use of military force. We’ve had a few of those. We’ve also had a lot of attacks that administrations of both parties have claimed were not war in the constitutional sense, because they were extremely short-lived, limited, low horsepower, low firepower operations. But the basic concept in the Constitution is that it is for the Congress, as a whole, to declare war.
In that case, what authority is the president drawing on when he claims the unilateral ability to commence these strikes?
He and the Defense Department have put forward a variety of rationales. One is to change the government in Iran. Another is to prevent further depredations by the Iranian government—the killing of protesters and so forth. Another is to deal with a period of more than 40 years of what the administration views as provocations, attacks, or anticipated attacks over a wide part of the world. There’s a constant flow of rationales and when one is knocked down, something else comes in to take its place.
And Trump’s claim is basically: I’m commander in chief, the Constitution puts me at the head of the military, so I get to launch these attacks if I think that’s the right thing to do for the country.
That seems to be his position. He is intentionally vague, but this is not a situation where you can be intentionally vague. We’re talking about life-and-death matters. We’re talking about whether the United States is going to be a pariah for the rest of history, whether people are going to get killed here, there, and everywhere as a result of his reckless activities.
You mentioned that sometimes Congress enacts authorizations for use of military force. Just to be clear, Congress has not authorized the use of military force against Iran, right?
That is correct. And what has happened is this country has drifted too far from the constitutional shore. The Constitution is very clear as to who makes the decision: It’s Congress. The only circumstances in which the president can act without a congressional authorization in advance are if there is an actual or imminent threat of an attack on the United States.
Now, the administration has trotted out a variety of “threats” by Iran, like calling the United States “the great Satan” and stuff like that. But we’re talking about a pattern of activity for over 40 years. What is it that made this last weekend different from the 40 years that preceded it? By the way, the administration had already assembled an armada off Iran and sent scores of warplanes to the Middle East. They weren’t there for a vacation. What was it that crystallized and suddenly it was necessary to go to war?
This does feel like something that goes beyond exploiting a constitutional ambiguity. Do you view this as part of the authoritarian creep we’ve been experiencing in the United States?
It’s unfortunately part of a larger pattern. And the thing that really terrifies me is that we can fully expect that the disregard for the rule of law that we’re seeing in an unconstitutional war against Iran may be a predictor of, or a lead-up to, a similar disregard of the rule of law domestically.
You wrote an op-ed in the Boston Globe arguing that Congress bears some blame here for failing to assert its own constitutional authority. What would it look like for Congress to stand up to this president and try to impose real restraints on his new war?
There are a variety of things that Congress could do, or could have done. One was to not confirm Mr. Hegseth to be secretary of defense, since he was utterly unqualified—a fact that he has demonstrated time and time again in office. Congress can withhold funding for various activities. They can issue a resolution disapproving of the president’s conduct. We also have an upcoming election. Every single person who is seeking to be elected to the House of Representatives or the Senate should lay their cards on the table as to what they think about this war, and what they would have done had they been in office before we went to war. We have a right to know that.
Let’s talk about what could happen between now and then: impeachment. You wrote in the Boston Globe that you’d like to see articles of impeachment “introduced and aggressively pursued.” I suspect even a lot of critics of this war think that recommendation goes too far. Can you lay out why you think that Trump’s actions here constitute high crimes and misdemeanors that qualify him for impeachment and removal from office?
Aside from perhaps trying to overturn an election, I can’t think of anything that comes closer to being a high crime and misdemeanor than what President Trump has done here, which is pursue a war not authorized in advance by the Congress. It doesn’t get more fundamental than that. Now, there are people—whose opinions I have the greatest respect for—who believe that no wise purpose is served by what is almost certain to be a failed effort to impeach, much less remove, President Trump from office based on this unconstitutional war. I get that. There are people who believe that the main event is the elections, and the danger that lurks there in terms of the potential that this administration might well interfere and thwart the desires of the voters. I deeply respect that.
On the other hand, there is something important about the performative dimension of constitutional law. President Trump is often said to be doing things for performative reasons, and he’s not the only one that gets to do things in American democracy for performative reasons. There is a valid performative reason for people to try to get him removed from office, even if it fails. History has been kind to members of Congress who’ve taken unpopular stands against war. I’m thinking of Rep. Barbara Lee of California, who voted against the AUMF after 9/11. The two senators who voted against the Tonkin Gulf Resolution. A congressman from Illinois named Abraham Lincoln who was very hostile to what he thought was an unwise and illegal war with Mexico. Those are profiles in courage, and I’d like to see some profiles in courage here. Sometimes you have to show courage even if you know that you’re not going to get what you think you should get, which is removal of this president.
It sounds like you’re saying that introducing articles of impeachment would be a way of making the illegality here visible and legible to the public—using the constitutional structures we still have in place to call attention to how far outside of the Constitution Trump is going here.
That is correct. Drawing a line under it and saying: “We here, addressing ourselves to history—if not to tomorrow morning’s newspapers—condemn this unconstitutional action on the part of the president.” That has a value. And I think if our country is going to continue to treat the U.S. Constitution as a document with legal force, that has to be done.