WASHINGTON — There has been a lot of debate across the country—and in Congress—over the past week over the legality of President Trump’s strike killing Iranian General Qasem Soleimani. Vagueness in the relevant clauses in the Constitution and grey areas within the law leave a lot up to interpretation and debate.
First, let’s look at what the Constitution says in regards to war powers. We’ll start with the Congress, since that’s the branch the Founders started with (they put them in Article I).
Article I, Section 8 of the Constitution lists all of the power specifically given to Congress. In regards to war, Congress has the power to declare war, and raise and support our branches of the military. It also gets to decide what we spend our money on—meaning, it funds our military, and any wars we find ourselves in.
The Constitution gives far fewer specific powers to the president overall, and that includes in areas of war. That is not to say, though, that the powers of the president are less constitutionally important. Article II names him or her the commander in chief, meaning the president is ultimately in charge of the military and makes decisions after we go to war.
Here’s the thing: Congress hasn’t historically been too keen to actually exercise it’s constitutional power in this arena. The last time the U.S. actually declared war against another country was against Romania during World War II. Every conflict since has not technically been a “war,” at least not in a strictly constitutional sense of the word.
Presidents of both parties have ultimately decided to go it alone many times, and Congress usually doesn’t give them much legal pushback. In 1973, though, the Congress did take one major step to reign in presidential powers with the War Powers Resolution (often referred to as the “War Powers Act”).
Over President Nixon’s veto, Congress adopted a series of restraints and legal limitations, with the goal of ensuring both Congress and the president both have a say when deciding to put our military in harm’s way. The resolution requires the president to consult with Congress over military action, and it prevents him from entering combat without authorization from Congress, unless—and this is the important part—there is an attack or imminent threat of attack against us.
That’s why there is such a big debate now over whether or not the Iranian general we killed was an “imminent threat.” President Trump did not get congressional authorization first.
What does the phrase “imminent threat” actually mean? That is the million dollar question.
House Democrats are preparing to pass a measure Thursday that would limit President Donald Trump’s ability to take military action against Iran, though Republicans in the Senate probably won't approve the measure.
Tim Kaine has presented a similar proposal in the Senate, saying it was "a far cry from meeting a standard of imminent threat. At least two Republican senators said they will join Democrats in voting for the bill: Utah Senator Mike Lee and Kentucky's Rand Paul. The Senate vote is not expected until next week.