Is the United States at war with Iran if Congress has not declared it?
Only Congress can declare war, but the president can use that authority and the War Powers Act to take military action.
Congress is scheduled to vote this week on whether to authorize the war against Iran that President Donald Trump has already launched, in what experts call a “tipping point” for Congress’ unique war-declaring power, which has been eroded for decades by presidents who have overstepped constitutional limits.
The Senate is scheduled to vote on the bill on March 4, according to Sen. Tim Kaine, one of the Democrats leading the Senate effort. The bipartisan duo of Democratic Representative Ro Khanna and Republican Representative Thomas Massey have introduced a bill in the House of Representatives that would force a vote on the Iran war.
“The American people are tired of regime change wars that cost billions of dollars and risk lives,” Khanna said in a video statement on February 28, hours after President Trump launched the war. “Every lawmaker needs to go on record today.”
The constitution provides that only Congress has the power to declare war. However, President Trump has launched military attacks on seven countries this term, without getting the go-ahead from Capitol Hill in each case.
The United States has not officially declared war since World War II. But experts say a new war in Iran could put the nail in the coffin, effectively erasing Congress’s sole constitutional power to declare war.
“If Congress doesn’t act here, we’ve really crossed the Rubicon in a way we’ve never seen before,” said Tess Bridgman, a former National Security Council adviser under President Barack Obama.
Iran war superpower vote likely to be rejected
In a letter sent to Congress on March 2 and shared by CBS and other news organizations, President Trump argued that Iran’s support for “terrorism” and missile stockpiles “pose a direct threat” to the United States and have “become unsustainable.”
“At this time, it is not possible to know the full scope and duration of any military operations that may be required.”
It is unlikely that enough Republicans will cross the aisle to vote in favor of the War Powers Resolution to curb the Trump administration’s three-day war on Iran. Several Republican senators in January declined to take a position on Mr. Kaine’s efforts to block President Trump from further U.S. military involvement in Venezuela after the U.S. military detained President Nicolás Maduro.
Sens. Todd Young of Indiana and Josh Hawley of Missouri initially voted to advance the bill, but reversed themselves during a vote in mid-January after pressure from the administration. The resolution was not passed.
The War Powers Resolution requires the president to warn Congress within 48 hours of any use of force by the U.S. military. It then has 60 to 90 days to win support from Congress or cancel it.
The ongoing attacks on ships in the Caribbean and Eastern Pacific Ocean, launched by President Trump in September, have killed at least 140 people from Colombia, Venezuela, Ecuador and elsewhere, and are already well past their deadline.
In a letter sent to some members of Congress in October, President Trump claimed that the United States was in a “non-international armed conflict” with drug cartels and that their drug trafficking constituted an “armed attack against the United States.” The administration has shown no evidence that those killed in the attack were trying to bring drugs into the country, and legal experts have bristled at the argument that drug traffickers could be considered armed combatants.
President Trump “doesn’t bother” seeking approval from Congress
President Trump’s disregard for Congress’s power to declare war follows past precedent. His predecessors had expanded the scope of the Constitution over the years, discouraging the commander-in-chief from seeking parliamentary approval..
“This has just become crystal clear and clear what has been true for quite some time,” said Timothy Edgar, a national security lawyer who worked in the Office of the Director of National Intelligence. “The president is not bound by the Constitution and hasn’t been for a long time.”
Congress enacted the first War Powers Resolution in 1973 amid concerns in Washington that the Korean War and the Vietnam War, both of which began without a formal declaration of war, had troublingly expanded the president’s authority to use military force unilaterally. In the late 1960s and early 1970s, revelations that President Richard Nixon had ordered secret bombing raids on two neutral countries, Cambodia and Laos, prompted Congress to take action. Nixon vetoed the 1973 bill, but Congress overrode it.
For more than half a century, presidents have launched numerous military attacks around the world without a formal declaration of war from Congress, from President Bill Clinton’s bombing of Yugoslavia to President Barack Obama’s bombing of Libya.
After the September 11 attacks, Congress authorized President George W. Bush to use military force against countries or terrorist groups he deemed responsible. In the decades since then, presidents have relied on Congressional orders to justify usurping military counterterrorism efforts, such as detaining unconvicted people at Guantanamo Bay and secret wiretapping of American citizens.
Congress has made repeated attempts in recent years to reassert that power, to no avail.
During President Trump’s first term, the House and Senate passed a resolution in 2019 barring him from using the military indefinitely to support Saudi Arabia’s war in Yemen, and a resolution in 2020 barring him from launching a major attack on Iran after he ordered the killing of the country’s top general. President Trump overrode both resolutions with a presidential veto.
But for now, the line between all-out war that requires Congressional involvement and limited military use outside the scope of war is “political” rather than “legal,” said Edgar, who testified for the American Civil Liberties Union in a Sept. 1 speech. 11 Authorization for the Use of Military Force. As a result, “the president can do whatever he wants,” he said.
Trump is the first president to “not even bother to ask or argue with the American people about the need for military action,” he said.
“If this is not a war in the constitutional sense, then it is no longer a war,” Bridgeman said.
