Throughout history, presidents and congresses have jockeyed for control over war powers. Article I of the Constitution grants Congress the exclusive authority to declare war, while Article II names the President as “Commander in Chief” of the army, navy and militia. The jockeying reached a watershed moment of congressional assertiveness with the passage of the 1973 War Powers Act. Since then, however, presidential war-making power has been in a state of near-constant expansion—an expansion only accelerated by overseas counterterrorism actions and recent presidential military actions in Libya and Syria.
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Speaking at Brigham Young University, Defense Department General Counsel Paul Nye offered the most-detailed defense we have yet seen of the Soleimani airstrike, addressing both international and domestic law as well as the underlying facts.
Congress has told the Trump administration that it has to produce a public war powers report by March 1. And if that doesn’t happen, private citizens can now sue over it.
A valuable new database of war powers reports is available for scholars—but absent congressional action, the type of document it is collecting may not be long for this world.
The White House has sent a notice to Congress outlining its legal and policy justifications for the Jan. 2 airstrike that killed Iranian Maj. Gen. Qassem Soleimani. This disclosure is a legally mandated reporting requirement introduced through Section 1264 of the 2018 National Defense Authorization Act, a measure intended to increase transparency in U.S. national security policy.
The current scope of the executive’s authority in this space is the product of decades of “unilateralist presidencies and submissive legislatures.” Essentially, Congress has abandoned this space, and the executive, in the name of national security real or perceived, has filled it.
The outcome of the war—and the means necessary to achieve it—led to the war’s most noteworthy constitutional precedents.
The U.S. may have attempted to kill a second Quds Force commander simultaneous with the Soleimani attack, this time in Yemen. The situation underscores the confusion that besets the self-defense justification.
A new Lawfare Institute e-book, "Context and Consequences of the Soleimani Strike: A Lawfare Compilation," is now available on Kindle.
The War Powers Resolution provides expedited procedures for a very specific type of legislation. This limits how Congress can use them in regard to Iran.
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