Another opinion piece on the Iran situation as it affects US politics 
      
       
  
Tuesday  will be the third anniversary of the Supreme Court’s decision in Dobbs, the  case that stripped American women of their right to get an abortion. At the  time, that felt like a new low in modern-day America. Since then, however,  the country reelected Donald Trump to the presidency. 
            
  
On  Saturday, Trump bombed Iran. Historians can debate whether or not it was the  “right” thing to do. But he did not go to Congress for authorization first.  
  
Article  I, Section 8, Clause 11 of the Constitution gives Congress the power to  declare war. But as John Bellinger III, a senior fellow at the Council on  Foreign Relations explained, presidents have significant power  “to order the use of military force to defend the United States and U.S.  persons against actual or anticipated attacks.” They may also do so “to  advance other important national interests.” Although it has sometimes attracted  controversy, presidents from both parties have proceeded without a  congressional declaration.  
  
There  has never been a precise judicial determination of when the War Powers Clause  of the Constitution requires Congress to act before a president can. But it’s  clear presidents don’t require congressional authorization for every military  step they take. 
  
There  are some limitations, however. In a 2016 memo, the Justice Department’s  Office of Legal Counsel (OLC) explained, “The President’s power to employ  military force abroad in the absence of specific prior congressional approval  derives from his constitutional responsibility as Commander in Chief and  Chief Executive for foreign and military affairs.” The White House has turned  to OLC for opinions on the legality of planned military actions in the past,  as President Obama did in 2011 in Libya. Obama authorized the strikes to protect the lives  of pro-democracy protestors only after the United Nations had signed off.  Even then, he subsequently called it the worst mistake of his presidency,  despite it being the “right thing” to do, because of the chaos that ensued in  the country as a result. 
  
OLC  opined that defensive measures designed to repel a “direct and immediate  military attack” are a basis, although not the only one, for a president’s  use of military force without congressional approval. But a “‘possible  constitutionally-based limit’ on such Presidential authority may exist where  a planned military engagement constitutes a ‘war’ within the meaning of the  U.S. Constitution’s Declaration of War Clause.” 
  
So, is  this a war? It’s unlikely that DOJ will stand in Trump’s way, no matter what  he wants to do. Vice President JD Vance and Secretary of Defense Pete Hegseth  have carefully characterized the attack as a one-and-done exercise, not as a  prolonged attack designed to create, for instance, regime change. But Trump  took to Truth Social to countermand that carefully concocted image, writing,  “It's not politically correct to use the term, 'Regime Change' but if the  current Iranian Regime is unable to MAKE IRAN GREAT AGAIN, why wouldn't there  be a Regime change??? MIGA!!” 
  
That  creates the appearance that Trump has plans that would require a  congressional declaration of war. Bellinger explained that most presidents  prefer to have congressional authorization before entering into anything  sustained, or at least a previous declaration that they can rely on. There  are also indications that this is not over. There is reporting that while Iran’s Fordo Nuclear  Site was damaged, it was not destroyed. Iran may be able to reboot over time.  Iran was still able to inflict heavy damage on Israel  overnight after the U.S. strikes. It’s far too early to assess how this  develops. 
  
Even if  Trump had the constitutional authority to act, some international lawyers are  arguing the bombing violates international law. Countries have the right to  act in self-defense and to take steps to protect themselves from an “imminent armed attack.” Bellinger explained  that even though “The United States has taken a broad view of ‘imminence,’”  maintaining that argument here would be extremely difficult. That may explain  why Trump said he acted based on different intelligence than what our own  intelligence community provided him with. Trump might argue he was stepping  in to protect our ally, Israel, but the success of that argument would depend  on the legality of Israel’s strikes. The United States has not taken that  path in the past. In 1981, during the Reagan administration, we were part of  a unanimous condemnation of Israel for  launching an attack on a nuclear reactor in Baghdad. In 2007, the Bush  administration declined a request to participate in a  strike on a Syrian reactor. But the legal determinations will turn on factual  ones, including how imminent of a threat Iran posed to Israel. There are lots  of twists here, both factual and legal, and we will learn more in the coming  days. 
  
Rather  than taking the safer course and going to Congress for authorization or at  least briefing the Gang of Eight (a group of bipartisan Congressional leaders),  reports indicate that Republicans, but not Democrats, were briefed. Donald  Trump claimed the power to strike for himself and he acted. That’s the  throughline for this administration from start to present. And although some  Republicans claimed Democrats were not briefed because they would have  leaked, that is belied by numerous administrations where the full gang of eight has been briefed on  significant developments of high sensitivity. There is simply no basis for  that allegation. 
  
I write  to you a lot about the fact that where things start is not where they end up  with the Trump administration. Here, we see that proposition on full display.  Trump started by firing inspectors general without giving Congress the 30  days of notice required by law before doing that. Congress didn’t object.  Trump kept going. He started dismantling executive branch agencies. Even  though that tramples on Congress’ power of the purse, they didn’t do much  more than whimper. Then the White House tried to tie receipt of funds  Congress has set aside to help states with transportation infrastructure to promises  to help with immigration enforcement. Still, Congress did nothing. And the  Supreme Court? The Court that held that there was virtually nothing a sitting  president could do that would violate criminal law? They haven’t exactly  given the president reason to pump the brakes either. Which is how we find  ourselves at this juncture. When you get away with pushing the limits of  power time after time, this is where you end up. Republicans in Congress,  many of whom lauded Trump as the president who would end all wars, were, for  the most part, quick to fall in line. The White House was quick to put up a release showing that everyone from Speaker  Mike Johnson to Alabama Senator Katie Britt, who encouraged people to “pray  for peace” even as the president she supports attacked, to Representative  Mike Lawler, who said, “War has not been declared, however, a Nuclear Iran  has been prevented. I fully support the President’s decision,” had lined up  behind Trump. 
  
    
        
  
Increasingly,  it’s hard to write a “Week Ahead” column on Sunday nights, because so much of  the crazy in this administration reveals itself over the course of each  weekend. But there is a full legal docket ahead this week, which I’ll write  about tomorrow night. 
  
In this  moment, all eyes are focused on the fact that we have bombed Iran. We will  not know what the long-term consequences of that action will be for some  time. But two-week Don, the TACO president, sure showed them. The man  who is too weak to take criticism and name-calling in stride, even though he  does it relentlessly to others, the man who acts impulsively when challenged,  remains in charge of the military and in control of the nuclear codes at this  pivotal moment. 
  
We’re in  this together, 
 Joyce   
  
   
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