The U.S. Supreme Court could soon be put on the spot if lawmakers challenge President Donald Trump's war against Iran.
The president's war with Iran is most likely illegal under the War Powers Act, argued Erwin Chemerinsky, dean of the University of California, Berkeley, law school in an op-ed for the New York Times, and he said it will be plainly unlawful by the end of this week.
"If the war continues through Friday without congressional approval, it will clearly be illegal, having passed the 60-day threshold and the 48-hour notice period that the president is given, under the War Powers Resolution of 1973, to conduct this kind of military operation," Chemerinsky wrote. "Whether you support or oppose this war — or, as Mr. Trump has called it, this 'excursion' — time will be up. And it is the obligation of the federal courts to say so."
The Vietnam-era law requires the president to withdraw the military from hostilities after 60 days unless Congress has declared war, although he can extend that deadline for 30 days by certifying an “unavoidable military necessity” in writing to Congress – but neither of those things have happened.
"If the president and Iran’s leaders don’t reach an agreement to end the war before the deadline, every indication is that Mr. Trump and the Republican majorities in the House and Senate will ignore the act," Chemerinsky wrote. "To try to justify continuing the war, there’s a good chance they’ll come up with some new form of legal-sounding double talk. If that’s the case, it will be left to the courts to uphold the law. Suits should be brought, including by service members and by members of Congress, to enforce it."
However, the courts have no enforced the act in previous challenges by individual lawmakers against military action, including efforts to halt the Iraq war in 2002 and operations in El Salvador in 1982 and Libya in the 2011.
"These decisions make meaningless Congress’s war powers," Chemerinsky wrote. "In the face of congressional inaction, and without judicial enforcement, there are realistically no checks on the president’s ability to unilaterally wage war. If the federal judiciary, up to and including the Supreme Court, won’t uphold its responsibility here, it will nullify our Constitution’s design that two branches of government should be involved when our country goes to war."
That hasn't always been the case, Chemerinsky wrote, especially the early days of the United States, and he argued that the Constitution couldn't be more clear about the decision to make war.
"The Constitution’s framers unquestionably intended that the power to use military force lay with Congress," Chemerinsky wrote. "Yes, presidents control the execution of wars, but they don’t decide whether to take the country to war."
"The courts should simply hold that the War Powers Resolution requires the president to end our involvement in the war with Iran unless and until Congress authorizes it," Chemerinsky added. "This shouldn’t be — and isn’t — different than any other injunction on any administration to comply with the law. Mr. Trump might disregard such an order. But that isn’t a reason for the federal judiciary to abandon its duty to enforce the law."