Erwin Chemerinsky is a leading Constitutional scholar and dean of the law school at Berkeley. He wrote the following analysis for CAFE, a publication of legal scholars

He writes:

The attack on Iran shows how far this country has gone in abandoning checks and balances and creating a president with virtually limitless power. President Trump could have and should have sought congressional approval for this military action, as President George W. Bush did after 9/11 in having Congress adopt the Authorization for the Use of Military Force. But instead, President Trump acted unilaterally, again rendering Congress meaningless.

The Constitution created an elegant structure that was meant to require two branches of government to be involved for any major action of the federal government. Enacting a law required the involvement of Congress and the President. Enforcing a law necessitated a prosecution by the executive branch and a conviction by the courts. Appointing ambassadors or Supreme Court justices required nomination by the President and confirmation by the Senate. A treaty is negotiated by the President, but effective only if ratified by the Senate. 

War powers, too, were divided between Congress and the President. Under Article I of the Constitution, Congress has the power to declare war, while Article II says that the President is the Commander-in-Chief. Although there has long been debate over the power of the President to use troops without congressional approval, the Constitution was meant to have both branches of government involved before the United States goes to war. Most simply, the framework of the Constitution intended that Congress would decide whether the United States would be involved in a war, and if so, then it would be for the President to decide how to wage it.

Of course, there can be emergencies where it is impossible for Congress to be consulted or involved before troops are used. But no one realistically can say there was an emergency that required military action in Iran. That country’s development of nuclear weapons and its human rights violations are not new. In fact, this is the second military action against Iran in the last year. President Trump has been threatening new military action against Iran for weeks.

Moreover, the War Powers Resolution, a federal statute adopted in 1973, requires congressional approval for the United States to be involved in a war. Under that statute, the president must notify Congress within 48 hours of the military action, and must seek congressional approval for troops to remain for more than 60 days. Congress adopted this in an attempt to reassert its powers after the disastrous war in Vietnam. The War Powers Resolution reinforces the basic constitutional principle of checks and balances and the Constitution’s rejection of unconstrained presidential power.

There is no doubt that we are at war in Iran. President Trump has described this as a “massive” military effort and has warned that there likely will be the loss of lives, in Iran and Israel, across the Middle East, and of American soldiers.

No one person should be able to make this choice under a Constitution based on the separation of powers. President Trump should have sought congressional approval, like the Authorization for the Use of Military Force passed in 2001. This would have allowed scrutiny of President Trump’s claims about the need for this military action.

President Trump has asserted that the military action was needed because Iran had enough available nuclear material to build a bomb within days and was developing long-range missiles that would soon be capable of hitting the United States. President Trump’s long history of lying to serve his purposes certainly should warrant scrutiny of his claims. Congress should have had the opportunity to do this before the United States went to war in Iran.

There is strong reason to believe that President Trump’s claims of a need for this military action are simply false. There are serious doubts that Iran has sufficient nuclear material to construct an atomic bomb. In fact, President Trump declared not long ago, after the first military action against Iran, that we had successfully destroyed Iran’s nuclear capacity. Experts also disagree that Iran has long-range missiles.

None of this is to deny that Iran has engaged in brutal repression. Nor is it to deny the concern over the dangers of Iran having nuclear weapons. But whether these fears justified military action should have been scrutinized, debated, and decided in Congress.

President Trump likely feared that if he had gone to Congress for authority to launch military actions against Iran, even the Republican controlled House and Senate would have said no. But that is exactly why the Constitution intended two branches of government to be involved in war-making decisions. 

President Trump certainly also believes that he did not need congressional approval and that, as Commander in Chief, he can use the military however he wants. Unfortunately, there have been many instances in which both Republican and Democratic Presidents have used troops without congressional authorization. 

But under a Constitution committed to checks and balances, there must be some limit on what the President can do unilaterally, especially in a matter so grave as involving the United States in war. It is now imperative that Congress exercise its constitutional powers. It should immediately hold oversight hearings to learn the objectives of the military action in Iran.  Congress must be part of deciding what comes next. 

More fundamentally, we need to recognize a serious flaw in how the Constitution has come to be implemented. There is no separation of powers and no checks and balances when it comes to war powers. We have come to empower the President to do whatever he wants. We should recoil at this and be very frightened by it, regardless of who is in the White House.  

It is impossible to know the outcome of the military action in Iran. Will it lead to a regime change, an end to Iran’s nuclear program, and a humane, even democratic, government? Or will it create a power vacuum and lead to a disaster like the one that occurred in Iraq after the military action there? Will the loss of life from this military action be minimal, or will a desperate regime in Iran cause catastrophic harm?

But it is precisely the uncertainty over grave consequences whenever there is a war that justifies why no single person should be able to have so much power. We must find a way to ensure checks and balances in the exercise of the war-making power.

Stay Informed, 
Erwin 

CAFE Contributor Erwin Chemerinsky is the Dean of Berkeley Law, where he also serves as the Jesse H. Choper Distinguished Professor of Law. He is the author of over 200 law review articles and nineteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. He is a contributing writer for the Los Angeles Times Opinion section, and writes regularly for the Sacramento Bee, the ABA Journal and the Daily Journal, and frequent op-eds in newspapers across the country. He also argues appellate cases, including before the United States Supreme Court.