While the long or immediate-term fallout from Trump’s decision to bomb Iran’s enriched uranium facilities remains to be seen, legal experts are still debating whether Trump’s conduct was Constitutional.
There are plenty of legal opinions on both sides. Here’s mine: No, it wasn’t, because there was no evidence that either the US or Israel faced an imminent threat; Israel announced that it had set back Iran’s ability to build a nuclear weapon by several years days before Trump jumped into the brawl. Three or four years is not “imminent” under anyone’s definition.
Worse, by unilaterally bombing a sovereign nation that had not attacked the US, despite the laudable goal of disarming a terrorist-supporting state, Trump has accelerated the US’ dangerous slide into authoritarianism.
The Founders intended for Congress, not the president, to declare war
Article I, Section 8 of the Constitution gives Congress the power “To declare War.” In contrast, Article II, Section 2 of the Constitution names the president commander in chief of the armed forces. The point at which Art. I cedes to Art. II or vice versa, ie, the point at which a president needs congressional approval before launching military activity, can be grey and is fact-contingent.
To Constitutional originalists, who claim to hew to the original language, intent and meaning of the Constitution as it was written during the founding era, no, the Constitution does not authorize presidents to deploy military forces against foreign seas, soil, or sky, without advance congressional authorization.
Kermit Roosevelt, constitutional law expert at the University of Pennsylvania Carey Law School, wrote, “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 (can respond unilaterally) 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.”
The counter position
Well before the Iran attacks, Republicans in Congress had essentially rolled over for Trump by failing to push back meaningfully on his unprecedented power grabs at the expense of their own. As Senator Lisa Murkowski admitted, many Senators are genuinely afraid of Trump, too afraid to follow their own Constitutional oaths. Whether that fear is political intimidation—based on Trump’s promise to primary anyone who opposes him—or existential, given Trump’s explicit encouragement of political violence against anyone who opposes him, remains unclear.
Republican Sen. Lindsey Graham, one of Trump’s most reverential sycophants, has declared that Trump did not need Congress to send ordnance bombs to Iran. Appearing on NBC news right after the bombs fell, Graham claims 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. All of these other military operations were lawful. He had all the authority he needs under the Constitution. They are wrong.”
The right assessment, according to House Speaker Mike Johnson, is whether the situation was so urgent the president calculated whether 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.”
Both positions would sound plausible, or at least not dangerous, if at any time there was any evidence of an “imminent danger.” Not only did Israel announce that it, alone, had bought several years with its own bombs, removing it from immediate harm, Trump’s Director of National Intelligence testified in March that intelligence assessed that there was no development of weapons-grade uranium in Iran. When asked about that assessment, Trump said, bluntly, “I don’t care what she said” and offered no countering facts or theories whatsoever.
What motivated Trump’s decision?
So what, then, did Trump care about before taking the extraordinary risk of entering the Middle East’s forever war? The timing suggests it wasn’t strategy. It was ego.
Trump pulled the trigger following two globally embarrassing events. His $45 million strongman military parade was an international joke outside of Fox News stations. Equally awful for a demagogue, Trump was roundly embarrassed at the G7 meeting while Netanyahu was enjoying extraordinary success in Iran.
In a widely under-reported story, Trump said he left the G7 early to “deal with” Israel, which apparently meant posting childish and impulsive warlock braggadocio on truth social. He beat his breast hard enough to signal Iran to move its 900 lb stash of enriched uranium, which put Israel—and us—in further danger, the outcome of which cannot yet be known.
The horrifyingly probable truth
Global press rejected Trump’s explanation for leaving the G7 early, reporting instead that he left early because the adults in the room refused to show him artificial deference. During the G7 opening press conference, Trump went on an inappropriate partisan tirade so bizarre that Canadian Prime Minister Mark Carney interrupted him and ended the press conference. The Italian Prime Minister was seen rolling eyes, presumably at Trump, and the world laughed at Trump’s petty insults against France’s Prime Minister Macron, of whom Trump appears to be jealous.
After all that, Trump tried to flex mob-boss strength to the press, announcing that the British Prime Minister had earned a trade framework protecting British trade because “I like them, that’s why. That’s their ultimate protection.” Those sound like words from a man who knows he's just been insulted by people he doesn’t like.
Humiliated on the global stage by both events, unwisely hidden from viewers at home by Fox News, Trump desperately needed to recast himself as a strongman for the rest of the world. Some have speculated with credible evidence that Trump resented watching Netanyahu get all the glory, especially after it became clear that Israel’s aggression against Iran had been spectacularly successful. On June 13, while Israel’s bombs were falling, Trump told New York Times reporter Helene Cooper that he still held his “America First,” ie, isolationist, perspective.
The next day, however, after a full day of watching Fox News lavish Netanyahu with praise, Trump changed his mind. Even though no new intelligence had come in, and Israel was already winning its fight, one official told Cooper that Trump’s shift in attitude started early the next morning when he woke up and watched Fox News. When he saw how Netanyahu was being praised as powerful and strategic, he wanted in on the action. Cooper noted that, “Israel was hitting all of these Iranian sites, it was taking out military commanders, nuclear scientists, and that was being presented on Fox as this huge victory. And (Trump) decided that he wanted a piece of it.”
In further support of this theory, Trump also started taking immediate credit for Israel’s successes. He claimed on June 17 in a truth social post that, “We” have taken control of Iran’s airspace,” and that a meeting with his national security advisers had cemented the decision to enter the war.
In close, this is one column in which I hope fervently to be wrong. The fallout from Trump’s unilateral and unconstitutional decision to bomb Iran may take months. It may take years.
Despite Iran agreeing to a ceasefire, only a moron would think “Death to America” Iranian mullahs will walk away and convert their 900 lbs of enriched uranium to candle wax. It’s virtually certain that they, or their terrorist proxies, will strike back when we least expect it.
If Trump visited this level of risk on Americans based on jealousy and his personal ego, we won’t survive his presidency.
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Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.