In view of war with Iran
Part 1 on presidential power
Note: I had mostly drafted this Friday and planned to wrap it on Sunday. It began, “Donald Trump just announced he’ll decide whether to bomb Iran in the next two weeks, and while he thinks it over, we should consider […].” Of course, he just decided to bomb Iran Saturday night. One question people have is, Can he do this?. Here is the post, only mildly altered and rushed out. It answers that question and explains how we got to the point presidents can take us to war unilaterally.
Donald Trump just bombed Iran, and one question people have is, Can he do that? In the Constitution it’s Congress’s job to declare war, but presidents have effectively subsumed this power.
In the 1970s, after being duped into the Vietnam war, Congress tried to set a limit on how long presidents can act unilaterally. Presidents now basically have 60 days to do what they want before Congress declares war or not — but imagine, we’ve dropped bombs on Iran and now Congress is going to say no? After we started the war?
In effect, by trying to set a limit, they delegated their power. Like many other powers.
War powers as a signal of a growing presidency
We recognize Trump’s autocratic overreach in many other contexts. Whether it’s DOGE, or Kilmar Abrego Garcia, or Los Angeles last week, each one of these episodes rightfully provokes concerns about Trump acting like an autocrat. But a war with Iran? Maybe we think the war is a misjudgment, but we also feel like it’s the president’s misjudgment to make.
I would call this drift of the war power just one significant example of many ways that the presidency had grown far beyond its constitutional bounds before Trump took it over. So now we have a uniquely autocratic president, and he’s inherited a version of the office with increasingly autocratic powers.
Below, we’ll look at the drift of the war power — and at the end, we’ll tie it to some other cases of expanded presidential power, like tariffs and DOGE and deportations.
War anywhere, whenever
In 2011, Barack Obama authorized the extrajudicial killing of a U.S. citizen — a terrorist — with a drone strike in Yemen, a country we were not technically at war with. In doing this, Obama did two things: he robbed a U.S. citizen of due process by keeping evidence secret from a court, and he abused the war power, like presidents before him.
The way they did it was a little different than using this 60 day limit, which is basically a permission slip. They needed to be able to hunt terrorists for a while, so they got creative with an old authorization to make war: the Obama administration justified their strikes by stretching a post-9/11 authorization designed to hunt al-Qaeda “and associated forces.” According to them, that “associated forces” bit licensed drone strikes 2,000 miles away from Afghanistan in Yemen (and also at other times in Somalia). In practice, this meant war anywhere, whenever.
Power takes power
It’s important to understand that this slip is not strictly due to the personal character of this or that president. It’s a dynamic of the system, like the warping of space-time by heavy objects — we should just expect an executive is always trying to subsume more power, whoever they are.
That’s the point of checks and balances. To anticipate this.
And that’s why I raise the Obama example. He’s the rare president who worried about these dangers too: he ran as an anti-war candidate and opposed Bush era wartime abuses (like the CIA torture program and Guantanamo Bay). He tried to maintain these values once in office. In fact, in the very same speech that he gave defending his own extrajudicial drone policy, he publicly cautioned against the expansion of presidential power.
“Our laws constrain the power of the president,” he affirms in the speech, “even during wartime.” That speech goes on to suggest new oversight for his own powers.
And yet, he still defends the extrajudicial killing because of the urgent demands of his job. Between his principles and his role, the role itself wins out, nudging him to claim more power. The lesson is that we can’t even expect a well-intentioned president to restrain himself.
If good people can be drawn into misuse of power, then evil people will misuse it gleefully — that’s the basic insight of the Constitution. Abstractions like “checks and balances” can seem remote, but this is the real and vivid meaning of it. That when a missile hits the desert sand in Yemen, it wasn’t just one man under pressure who decided it would happen.
The emergency dynamic is what grows the presidency
The Obama administration guidelines for drones centered on the notion of a terrorist abroad preparing an “imminent” attack, defined of course by the administration. (Does this mean writing plans in a notebook? Or sending people to flight school?) Danger — or implied danger — is always the pretext under which presidents whittle more power from Congress.
In the public imagination, emergencies favor a single leader over a deliberative body. And so even when we set aside all the clandestine coups and drone strikes, throughout history, presidents have conjured emergencies — either by provoking attacks or lying about them — in order to cow Congress.
In the summer of 1964, the Johnson administration was looking for ways to escalate a war Eisenhower and Kennedy had surreptitiously begun. The USS Maddox received one bullet hole off the coast of North Vietnam. The administration claimed that it had innocently been patrolling international waters when it was struck, but the truth is they were 12 miles off the North Vietnamese coast, trying to draw fire. Johnson’s emotional TV appeal about the attack won public support and sweeping war authority from Congress.
This was basically a repeat of 1898, when the USS Maine exploded off the coast of Cuba, then controlled by Spain. “Remember the Maine” became a national rallying cry, though it was later revealed to be an internal explosion, not an actual attack by Spain.
Polk had troops cross into disputed territory to provoke an attack in 1846. Bush lied about Iraq’s WMDs in 2003. Emergencies are the time to be most vigilant against presidential power, for Congress, and for us, the public.
Emergencies — here or abroad; real or provoked or lied about — are not just excuses to take power from Congress, but from us. They are always threats to our civil liberties. In WWI, Wilson passed the Espionage Act to curb protests of the draft. In WWII, Roosevelt interned the Japanese. In the Korean War, Truman tried to seize domestic steel plants. In the War on Terror, Bush wiretapped phones without warrants. That’s why presidential power needs to be restrained.
Trump in the imperial presidency
This is how we get back to Trump inheriting a presidency far beyond the bounds of the Constitution. Congress has started to sign away these powers in advance of emergencies.
In 1973, after being duped into Vietnam, the War Powers Resolution “limited” the president to 60-90 days to act unilaterally before they had to withdraw troops. But this “limit” was essentially an opportunity for a president to embed troops somewhere, draw fire, and then make it politically difficult for Congress to say no to war.
On war powers and in other domains, they write laws that let the president do some specific thing in the case of an emergency — or if a policy can be justified by national security interest — and then they let the president determine what that means. So now Trump can just claim those delegations in bad faith, declaring there an emergency where there is none. The war power presaged this effect on tariffs, on DOGE, and on deportations.
In 1977, Congress wrote delegated tariffs to the president for national security cases, which is how Trump has claimed the power to slap tariffs on any country he feels like. Just call a trade deficit national security.
On DOGE, the administration citing the 1974 Impoundment Control Act that was meant to limit the president’s ability to withhold funds from government departments, but like with the War Powers Resolution, it had the opposite effect of creating a formal way to defy the Constitution.
And on deportations, if Trump calls illegal immigration an “invasion,” he makes use of a 1798 law permitting him to speed deportation without due process. To justify the notion of invasion, he’s labeled a Venezuelan drug cartel a terrorist group and then basically assumed that any Venezuelans he deports are a part of it.
In all these cases and more, Congress has trickled its power away and made the presidency increasingly autocratic — not planning for the time we would elect an autocrat.
War with Iran
The MAGA coalition is split over war. Remember, they decided to abandon funding and arming Ukraine on the basis of their “America First”slogan. That same Republican Party contains the remnants of the people who took us to Iraq, who want to cut Medicaid but increase military spending, and who clamor for wars at every turn. So just imagine if the war power had been used correctly. Imagine if the Republicans in control of Congress had actually had to wrangle their members for a vote to go to war. Isolationist MAGA plus the Democrats would likely have the numbers to stop it.
Unfortunately, Congress had already let the presidency grow beyond its Constitutional bounds. Presidents, whatever their morals, want to act fast. Congress, from time to time, bends. And then they give it away ahead of time.
All of this has been an enduring feature of the republic, made worse at times by lies and emergencies and imperialist ambitions. But we find ourselves in a uniquely bad time. And that’s because when you combine this historic drift of presidential power with a polarized, gridlocked Congress, it gets much worse. If Congress is functionally stuck, it will be worse at checking the president than it already was.
That’s my next post, tying presidential power back to the polarization series. I plan to show how the decline of Congress makes the power vacuum that presidents exploit.
For now, take heart that the public is against this war. So far, we aren’t falling for the fake emergency. Let’s pray Congress doesn’t either, for once.
Corrections: In the rush to get this out, I made two errors. The tariff law (IEEPA) that delegated some authority to the president was 1977, not 1974. The law that tried to limit presidential withholding of appropriated funds was the “Impoundment Control Act” (1974), not the “Budget Control Act” (2011).