President Trump commenced “Operation Epic Fury” this morning, a joint military action with Israel against Iran. He did not receive authorization from Congress and was not responding to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Therefore, he has violated the War Powers Resolution (WPR) and should be impeached.

Given that Congress has already impeached Trump twice during his previous term for far less egregious reasons, if they were valid at all, it would seem uncontroversial to suggest that for illegally and unconstitutionally taking the nation to war, impeachment would be a slam dunk. But it isn’t, and not just because Republicans control the House of Representatives.

The truth is presidents are far more likely to be impeached for trivial violations that don’t affect the lives of their constituents than for egregious flouting of Congress’ most important laws. It would be to hard argue there is a more important statue than the one defining the circumstances under which the president can initiate military action. The War Powers Resolution is very clear on this:

(c) Presidential executive power as Commander-in-Chief; limitation

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are 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.

That’s it. Simple. There is no ambiguity here. None of the three conditions the law stipulates have been met. Therefore, President Trump’s action this morning was illegal. Period. And nobody cares.

The law goes on to impose reporting requirements on the president and sets a 6-day limit on any military action the president has taken without Congressional authorization. But all that only applies after condition 3) above has been met.

No, the law does not authorize the president to undertake any military action he wishes for sixty days. Many people get confused about this because they want to be confused. The law does not allow the president to initiate military action for a day or even an hour if one of the three conditions aren’t met.

Trump’s statement regarding his reasons for the attack does not even attempt to justify them under the WPR. He cites Iran’s 1979 seizure of U.S. hostages without mentioning it being in retaliation for the U.S. overthrowing the Iranian government in 1953 and propping up a dictator over them for the next twenty-six years. He then lists a series of attacks on the U.S. military Iran is alleged to have funded on U.S. military in the Middle East, where they shouldn’t be stationed in the first place. He ends with alleged Iranian funding of the Hamas attack on Israel on October 7, 2023, which is irrelevant to any justification of U.S. military force.

One can debate the veracity of the various accusations against Iran, whether any of them rise to justification for war, and what the U.S. response should be. And that’s just what the Constitution calls for – a debate. The members of Congress certainly have the constitutional authority to consider everything Trump has cited and decide whether to declare war on Iran or authorize a military response that falls short of war.

Even the latter option for Congress is constitutionally dubious. In fact, a compelling case can be made that the declaration of war power doesn’t even give Congress the power to start a war. It gives it the power to declare one. And one can only declare something that already exists.
 

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Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness? 

 Tom