On February 28th, President Donald Trump announced the start of “major combat operations” against Iran, with the explicit aim of overthrowing the ruling regime. The U.S. and Israeli militaries have bombed the Supreme Leader Ali Khameini’s compound, killed other senior government officials, and already hit civilian targets as well, including the bombing of a school for girls, which killed over 100 people. Iran has retaliated against U.S. military bases and allies in the region with strikes of its own. Donald Trump has started all of this without military provocation or a declaration of war from Congress.
In typically Trumpian fashion, these actions are shocking to the common understanding—and the intent of—the U.S. Constitution, while also representing the natural endpoint of conservative jurisprudence. The U.S. Supreme Court has been incredibly solicitous of executive power in foreign affairs, particularly when the president invokes a real or imagined emergency. The Court has handed executive lawyers sweeping descriptions of the president as the nation’s “sole organ” in foreign affairs and the ability to operate relatively freely in the “zone of twilight” between Congressional approval and disapproval. Again and again, the Court has given the presidency greater and greater tools to wage war without Congress. The result is a constitutional ecosystem in which launching massive military operations without Congressional authorization has become legally unsurprising—even when it escalates into something that the president openly calls a war.
Justice George Sutherland laid the foundation in 1936, in U.S. v. Curtiss-Wright Export Corp. An early entry in the United States corporations’ long record of fomenting war in South America, the Chaco War saw extensive arms sales to both Bolivia and Paraguay, with mounting casualties on both sides. When Congress authorized President Franklin D. Roosevelt to prohibit the sale of arms to the warring countries, he did so, but some companies continued their sales. Under indictment for violating the embargo, Curtiss-Wright Export Corporation challenged the embargo as an unconstitutional delegation of power to the president. The Supreme Court rejected that claim, essentially holding that beyond not being an unconstitutional delegation of power, the embargo’s authority arose from the president’s inherent powers.