Since US President Donald Trump launched strikes on several nuclear targets in Iran at the weekend, Democrats and lawmakers from his political party have criticized his constitutional authority to do so.
Republican Congressman Thomas Massie claimed on X that the strikes were “not Constitutional”, and Republican Congressman Warren Davidson wrote, “It’s hard to conceive a rationale that’s Constitutional”.
But Republican House Speaker Mike Johnson came to the president’s defence, stating he “assessed that the looming threat outweighed the time it would take for Congress to act” and that there’s “precedent of similar military actions under presidents of both parties.”
BBC Verify has sought legal opinion on whether Trump did what was constitutionally right or if he was supposed to go through Congress first.
Two sections of the US Constitution are applicable here: Article I and Article II. Article I specifically includes the power “to declare war” as among the powers of Congress.
But Article II – which outlines the powers of the president – states that “the president shall be Commander in Chief of the Army”, and the BBC has been informed by sources at the White House that they interpret this as the justification for the strikes against Iran.
Constitutional scholars have stated that Article II authorizes the president to employ military power in specific situations.
The situation isn’t exactly delineated within the Constitution – but has been later interpreted to encompass “actual or threatened attacks” or to “promote other vital national interests,” say Council for Foreign Relations experts.
These interests might be the deterring of nuclear proliferation – which was what the Trump administration explained as their rationale behind the Iran attacks. Four constitutional law experts explained to BBC Verify that Trump did have some power in these circumstances to direct the military strikes.
“The short answer is yes, he did have the authority here,” says Claire Finkelstein, a professor of law at the University of Pennsylvania Law School. “There is a long-standing practice of presidents engaging in isolated military engagements without congressional approval.”
Another constitutional law scholar, Jessica Levinson at Loyola Marymount University, stated the president is largely confined to approving air strikes as long as it “doesn’t start to look like a war, and there isn’t a clear definition of when that happens.”.
But Andrew Rudalevige, a professor of government at Bowdoin College, explained to BBC Verify he didn’t think Trump could legally carry out the new strikes as there wasn’t “a sudden attack to repel”. While Article I states Congress can declare war, the provision has been little used.
The last instance when Congress invoked this authority was in 1942 following the bombing of Pearl Harbor by Japan in the Second World War. It had been invoked before this on only 10 occasions since 1812.
Analysts also stated that presidents exercising their power to direct military interventions without obtaining approval from Congress is becoming the norm.
John Bellinger, a former White House legal adviser to President George W Bush, commented: “Congress has abdicated increasingly over the past few decades in instances of presidential uses of force for a range of purposes without congressional approval.”
“Congress and the judiciary have effectively overturned the requirement of a declaration,” said Jonathan Turley, a conservative constitutional lawyer, speaking to BBC Verify.
What have other presidents done? President Barack Obama authorized airstrikes against Libya without seeking the approval of Congress, which his administration cited under Article II, as also occurred during the 2011 mission to assassinate Osama Bin Laden in Pakistan.
And in Trump’s first term, he directed the assassination of Iranian military commander Qasem Soleimani without congressional approval.
Democratic President Bill Clinton ordered strikes in the Balkans during the 1990s without Congressional approval, and more recently, President Joe Biden did the same when striking Houthi targets in Yemen and Syria during his administration.
