Just war doctrine and Congress’s war powers

As I have argued since it began, President Trump’s war on Iran fails to meet several of the conditions of traditional just war doctrine.  Not the least of these is the “lawful authority” condition.  Under the U.S. constitution, the power to initiate war lies with Congress, not the president.  Trump’s brazen usurpation of this power is as serious an assault on the Constitution and the rule of law as can be imagined, and Congress’s failure to rein him in is a dereliction of duty that is no less grave.  There are many reasons to oppose the war, but the dangerously lawless way in which it was initiated and has been continued would alone suffice to render it unjust and indefensible.

The president cannot legally initiate a war

What the Constitution allows the president to do unilaterally with respect to military action is, of course, hotly debated.  But much of this debate is in bad faith.  While there are details over which reasonable people can quibble, the Constitution is very clear on who has the authority to do what where war is concerned:

The Congress shall have power to… provide for the common defence and general welfare of the United States… to define and punish piracies and felonies committed on the high seas, and offences against the law of nations… to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies… to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States…

The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States.

(“Letters of marque and reprisal” have to do with authorizing private citizens to attack or seize enemy vessels and the like.) 

It is to Congress, then, that the constitution gives the most fundamental powers where war-making is concerned – to raise, maintain, and govern an army and navy and other military forces, and to decide when to commit them to war.  This includes both military actions intended to defend the United States against attack and those intended to punish piracy, violations of the law of nations, and the like.  The president, meanwhile, is the chief commander of these forces once Congress has initiated hostilities.  This arrangement parallels the roles Congress and the president play with respect to lawmaking.  Congress makes laws, and the president then enforces them.  Congress initiates wars, and the president then conducts them.  It would, of course, be absurd to suggest that the fact that the president is the chief enforcer of the laws somehow entails that he himself has the right to make laws.  It is no less absurd to suggest that the fact that the president is the commander-in-chief somehow entails that he has the right to initiate a war.

There can be no doubt that this is how the framers of the Constitution understood the respective powers of Congress and the president.  As Louis Fisher shows in his book Presidential War Power, their concern was to prevent presidents from having the kind of discretionary power where war is concerned that kings so often had.  They believed that the Constitution had achieved precisely that end, by putting the power of initiating war in the hands of Congress.  For example, James Madison wrote that “the constitution supposes, what the History of all Govts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, and most prone to it.  It has accordingly with studied care, vested the question of war in the Legisl[ature]” (Letter to Thomas Jefferson, April 2, 1798, quoted by Fisher at p. 10).  Again, said Madison:

In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.  Beside the objection to such a mixture of heterogeneous powers: the trust and the temptation would be too great for any one man… War is in fact the true nurse of executive aggrandizement.  In war a physical force is to be created, and it is the executive will which is to direct it.  In war the public treasures are to be unlocked, and it is the executive hand which is to dispense them.  In war the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed.  It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle.  The strongest passions, and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honorable or venial love of fame, are all in conspiracy against the desire and duty of peace.  (“Helvidius” Number 4, September 14, 1793)

Thomas Jefferson expressed similar views, writing: “We have already given in example one effectual check to the Dog of war, by transferring the power of letting him loose from the Executive to the Legislative body, from those who are to spend to those who are to pay” (Letter to James Madison, September 6, 1789).  Elsewhere Jefferson acknowledged that “Congress alone is constitutionally invested with the power of changing our condition from peace to war” (Special Message to Congress, December 6, 1805, quoted by Fisher at p. 34).  And George Washington said that “the Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure” (Letter to William Moultrie, August 28, 1793, quoted by Fisher at p. 19).  Even Alexander Hamilton, well known for favoring a strong executive, acknowledged that “it belongs to Congress only, to go to war” (The Examination Number 1, December 17, 1801, quoted by Fisher at p. 35).

To be sure, during the constitutional convention, Madison agreed to a change of wording that made reference to Congress’s power to “declare war” in place of the original phrase “make war,” so as to leave open to the president “the power to repel sudden attacks” (Fisher, p. 8).  But this is the exception that proves the rule.  It is precisely because the framers understood the Constitution generally to prohibit military action without congressional approval that the question arose whether this ruled out even unilateral presidential responses to sudden attacks.  And as Fisher notes:

Presidential use of force during the first few decades after the Philadelphia convention conformed closely to the expectations of the framers.  The decision to go to war or to mount offensive actions remained with Congress.  Presidents accepted that principle for all wars: declared or undeclared. (p. 17)

In particular, even when repelling sudden military threats to the United States, presidents would confine themselves to defensive measures and look to Congress to determine what action beyond that was permissible.  As Fisher shows, this was true, for example, of Washington’s conflicts with Indian tribes, and of Jefferson’s dealings with Barbary pirates (contrary to the claims sometimes made by proponents of expansive presidential war powers that Jefferson acted unilaterally). 

It was only later and gradually that presidents clearly attempted to push beyond constitutional bounds, but even then they at least tried to give the appearance of acting constitutionally.  For instance, though President James Polk tried to provoke a war with Mexico, he did also seek a congressional declaration rather than pretending that he had the authority either to initiate hostilities or go beyond purely defensive measures.  And even though Congress did indeed issue such a declaration, Polk was later censured by the House of Representatives for having “unnecessarily and unconstitutionally begun” the war (quoted by Fisher at p. 43).  Abraham Lincoln wrote at the time:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure.  Study to see if you can fix any limit to his power in this respect, after you have given him so much… The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons.  Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object.  This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. (Letter to William Herndon, February 15, 1848)

During Lincoln’s own presidency, the Supreme Court noted in 1862 that while he could act to repel sudden aggression, “the President…has no power to initiate or declare a war either against a foreign nation or a domestic State.”  While Lincoln would nevertheless himself push the envelope of presidential war powers, he acknowledged the legally dubious nature of his doing so, and sought congressional approval after the fact.  While that is of course problematic, the point is that it illustrates that he understood that the Constitution was intended to deny presidents discretionary power of the kind that in practice he tried to exercise.

Since presidents would, during the century afterward, become ever less scrupulous in observing constitutional limits, Congress passed the War Powers Act in 1973 to try to rein them in and restore the limits on presidential war powers the Constitution intended and the earliest presidents acknowledged.  The Act states:

SEC. 2… (c) 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. [emphasis added]

SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances… the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement…

SEC. 5… (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of Untied States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States.  Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the 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.

Note first that the Act explicitly says that the president’s constitutional authority to use military force exists ONLY where Congress declares war, OR where Congress gives some authorization for military action short of a declaration of war, OR where there is a national emergency created by some attack on the U.S.  That’s it.  The only case in which the president may act without congressional approval is the last of these three, i.e. in immediate response to an attack actually underway against the United States.  There is nothing in the Act that permits a president to take unilateral action in any other context – for example, against a country he thinks someday could attack the U.S.

The importance of this point cannot be overemphasized.  Those who favor expansive presidential war powers often claim that the Act permits the president to use military force virtually however he sees fit, as long as he gets congressional approval within ninety days (the maximum amount that could be justified under Sec. 5).  This is sheer sophistry.  As Ilya Somin notes, “the WPA is a limitation on presidential power, not a grant of it…  The purpose of this [ninety day] requirement is to constrain even small-scale combat deployments that might otherwise not require congressional authorization.”  And the only such deployment recognized by the Act is the sort carried out to repel an immediate attack on the United States.

In light of the foregoing, the Iran war is manifestly unconstitutional.  Indeed, it is hard to imagine a more obvious example of the sort of unilateral presidential military action the framers of the Constitution and the authors of the War Powers Act intended to rule out.  Congress has issued neither a declaration of war nor any other authorization for military action against Iran.  The United States had not been attacked by Iran, nor was an attack from Iran imminent.  And even if the president did have the power to take unilateral military action for ninety days, the war has now gone on well beyond that, yet still not received congressional approval.

Of course, some apologists for the war claim that the U.S. and Iran have already been at war for 47 years, but as I have shown elsewhere, that claim too is sheer sophistry.  Indeed, this sophistry and others deployed by the war’s apologists – such as claiming that the conflict is not strictly a war, or that the war stopped after sixty days but restarted a day later (so that the War Powers Act’s time constraints were not strictly violated) – implicitly concede that presidents have no constitutional authority to initiate war.  There would be no point in proposing these absurd arguments, unless it was to try to rescue Trump from the charge that he has overstepped legal boundaries.

Note that the illegality of the Iran war would remain obvious even if one wanted to quibble about whether there might be some wiggle room for unilateral presidential military actions beyond just responses to sudden attacks.  For this is not some small or limited conflict.  While the stated aims of the war have shifted from moment to moment, President Trump has claimed at various times that the war is about ending the current Iranian regime and liberating the Iranian people; has threatened to destroy the country’s infrastructure and indeed end its civilization; has pledged to fight on as long as it takes until Iran’s nuclear capacities are destroyed and the Strait of Hormuz is opened; and has refused to rule out a ground invasion.  The war has already caused many civilian deaths and serious damage to U.S. military bases, as well as grave economic harm to the U.S. and our allies; has greatly depleted U.S. munitions stockpiles and thereby weakened our military position elsewhere in the world; and threatens to bring about a global recession if the strait is not reopened soon.  Hence the war’s aims are as ambitious and open-ended, and its potential effects as momentous, as any that could be imagined.

If the Constitution and War Powers Act would not rule out unilateral presidential action even of this extreme kind, there is nothing they would rule out.  To stretch their constraints on presidential discretion far enough to permit the Iran war would simply empty those constraints of all content.  Right-wingers who claim that the Iran war is constitutional are thus like left-wingers who pretend that the Constitution implies a right to abortion or same-sex marriage.  They are transparently arguing in bad faith, cobbling together specious constitutional rationalizations for policies to which they are committed on extra-constitutional grounds.

Just war doctrine and lawful authority

Some might object that at least for purposes of determining whether the war is just, all of this is neither here nor there, since what ultimately matters is not whether it meets U.S. legal criteria, but rather whether it meets the relevant moral criteria of natural law, as enshrined in just war doctrine.  Now, the “lawful authority” condition of just war doctrine tells us that private individuals cannot initiate a war, not even for a just cause.  Public authorities alone have the right and responsibility to do so.  But the war was initiated by the sitting President of the United States, not a private individual.  And that (so the argument might go) suffices for meeting the lawful authority condition of just war theory, whatever one thinks about the constitutional issues.

But this is just more sophistry.  The first problem is that for the lawful authority condition of just war doctrine to be satisfied, it is not sufficient that some governmental authority or other initiates military action.  It has to be the specific authority within a polity that possesses that power.  Hence, as Francisco Suárez argues in The Three Theological Virtues: On Charity, Disputation XIII: On War:

An inferior prince, or an imperfect state, or whosoever in temporal affairs is under a superior, cannot justly declare war without the authorization of that superior… such a declaration of war is opposed to the rights of the sovereign prince, to whom that power has been specially entrusted…

A war which, according to the preceding conclusion, is declared without legitimate authority, is contrary not only to charity, but also to justice, even if a legitimate cause for it exists.  The reason supporting this conclusion is that such an act is performed without legitimate jurisdiction, and is consequently an illegitimate act. (Section II)

As we have seen, in the American context, the authority to whom the power to initiate war has been “specially entrusted” is Congress, not the president.  Hence, on the specific matter of initiating war, the president is “inferior” in authority to Congress.  And thus, for him to initiate a war without congressional authorization is, by the criteria set out by Suárez, an “illegitimate act” and contrary to justice, even if the cause for which he does so is a good one.

We must also keep in mind that, as St. Thomas Aquinas teaches, when human laws are consistent with the natural law, they “are just and binding in conscience” (Summa Theologiae I-II.96.4).  No one has the right to disobey them merely because they were made by man rather than God, because the right of human governing authorities to make binding laws is itself part of the natural law.  Now, that the U.S. Constitution gives Congress alone the power to initiate war is part of human law.  One might argue about whether it would have been better to give the president more discretionary power than the Constitution does.  But there is nothing positively contrary to the natural law in the Constitution’s giving Congress alone the right to initiate war.  And it is only where human law is positively contrary to the natural law that it can be disobeyed.  Hence, Americans have a moral obligation to respect constitutional constraints on presidential war powers – and to oppose presidential violations of those constraints, just as they would oppose other forms of illegality.  Indeed, presidential illegalities, left unchecked, are far worse than those committed by ordinary citizens, because they undermine the credibility of the entire political order.  In this way, what President Trump has done is gravely harmful and immoral even apart from its violation of just war criteria.

There is yet another consideration.  For it is not merely that the natural law permits human law to limit the war powers of the chief executive in the way the U.S. constitution does.  In fact, the just war tradition positively favors this sort of arrangement.  In his book The Catholic Tradition of the Law of Nations, John Eppstein notes that as the Scholastic tradition of just war thinking developed, what became the standard view is that the decision to go to war is too grave a matter to leave to the discretion of one man.  Summing up the mature Scholastic teaching, Eppstein writes:

All those who hold office or have any political responsibility in the state are bound in conscience to examine carefully the rights and wrongs of a proposed declaration of war.  War may not be waged on the personal authority of the sovereign, but only after the advice of wise and impartial men has been sought, and after the claims of the opposing side have been carefully weighed. (p. 123, emphasis added)

In the same spirit, the bishops of the United States, in a 1919 pastoral letter, advocated the decentralization of decision-making where war is concerned:

The growth of democracy implies that the people shall have a larger share in determining the form, attributions, and policies of the government to which they look for the preservation of order.  It should also imply that the calm deliberate judgment of the people, rather than the aims of the ambitious few, shall decide whether, in case of international disagreement, war be the only solution.  Knowing that the burdens of war will fall most heavily on them, the people will be slower in taking aggressive measures, and, with an adequate sense of what charity and justice require, they will refuse to be led or driven into conflict by false report or specious argument. (Emphasis added)

Similarly, when addressing the question of how the individual citizen can be confident that a proposed war is just, the eminent Catholic natural law theorist Heinrich Rommen writes:

A good opportunity exists… where the representatives of the people have some control over the foreign policy of the government.  Another favorable factor would be a constitutional provision that the most concentrated competence of sovereignty – the declaration of war – be exercised “by plebiscite or at least by resolution of representatives of the people.” (The State in Catholic Thought, p. 671)

In giving the power to initiate war to the legislature rather than the executive, then, the U.S. constitution is not merely consistent with the just war tradition, but indeed more in its spirit than a political order that gave greater discretion to the president would be.  This gives Catholics and others who accept just war doctrine extra reason to oppose unconstitutional wars.

When we consider together both the just war tradition and the U.S. constitution, then, it is clear that no American war can meet the “lawful authority” condition unless it is given congressional approval.  And this is exactly what some pre-Vatican II American Catholic manuals of moral theology implicitly or explicitly taught.  For example, in volume 1 of their Moral Theology: A Complete Course, Fr. John McHugh and Fr. Charles Callan write: “What public authority has the right to declare war?  Ordinarily, only the sovereign power – that is, the person or body in whom the chief authority is vested according to the constitution of a nation – can make war” (p. 560, emphasis added).  Fr. Austin Fagothey’s Right and Reason teaches that “only the person or body designated in the constitution of the state as having the authority to declare war can do so legitimately” (p. 563, emphasis added).  Fr. Francis Connell’s Outlines of Moral Theology states that in order for a war to be just, “a declaration must be made by the lawful authority – in the United States Congress” (p. 116).  (I note that these are pre-Vatican II works to forestall any foolish suggestion that scruples over congressional authorization somehow reflect post-Vatican II theological liberalism.)

It cannot reasonably be denied, then, that the Iran war fails to meet the “lawful authority” condition of just war doctrine.  That alone would suffice to make it unjust, even if it were otherwise unproblematic.  But as I have argued in other articles (linked to below), the war is unjust for several other reasons as well.

Further reading:

The U.S. war on Iran is manifestly unjust

America’s conflict in Iran is not a just war

Does just war doctrine require moral certainty?

Misunderstanding the “just cause” condition of just war doctrine

No, the U.S. has not been at war with Iran for 47 years

The evil and incoherence of targeting civilian infrastructure

Just war doctrine and the duties of soldiers