The New Yorker:

How we got to a situation where a President can reasonably claim that it is lawful, without congressional approval, to bomb a country that has not attacked the U.S.

By Jeannie Suk Gersen

Two interrelated fears that have caused mounting public alarm with respect to the Trump Administration involve unchecked executive power and the erosion of the rule of law. These worries have intensified in debates about the legality of President Trump’s decision to bomb Iranian nuclear facilities more than a week into Israel’s war against Iran. Members of both houses of Congress had introduced resolutions to try to prevent Trump from taking such military action without its authorization. But the energy that some lawmakers had mustered for a rare attempt to assert Congress’s constitutional power against Trump seemed to dissipate, at least while they expected a ceasefire between Israel and Iran to hold.

One would normally look to Supreme Court precedents to determine the constitutionality of a Presidential action. But no cases provide legal answers about the permissibility of attacks like the one on Iran. The only relevant case from the Court dates to the Civil War. It states that Congress has the sole power to “declare war,” but that, in the event that a foreign nation invades the U.S., congressional authorization is unnecessary and the President’s constitutional power as the Commander-in-Chief is sufficient to take action. The Court noted that the President cannot “initiate the war,” but it has never provided an authoritative definition of “war,” as opposed to armed conflict.

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