Richard Bernstein: Separation of Powers

This article was written by a Charter Member of the Society for the Rule of Law. The views expressed are solely those of the author and do not necessarily reflect the views of the Society, the Institute, or its leadership.

Separation of Powers: Obliterated by the Bombing in Iran, and Under Threat At Home

Article I, Section 8, Clause 11 gives the power “To declare War” to Congress, not the President. That is why Presidents George H.W. Bush and George W. Bush — no shrinking violets in using lethal American military power abroad — obtained congressional authorization to attack Iraq before doing so in the first and second Gulf Wars. But the bombing of Iran that occurred Saturday has obliterated that congressional power and unconstitutionally expropriated for the President Congress’s power to declare war. We should beware similar usurpation of congressional power over the military at home.

The War in Iran

Justice Scalia aptly summarized what a profound change it was for the Constitution to give Congress, not the Executive, the power to declare war. In England, the King had “’sole prerogative of making war and peace.’” Zivotofsky v. Kerry, 576 U.S. 1, 67 (2015) (Scalia, J., dissenting, joined by Roberts, C.J., and Alito, J.) (quoting 1 W. Blackstone, Commentaries). In our Constitution, “[t]he People of the United States had other ideas when they organized our Government. They considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.” Id. In particular, “they gave Congress power[] over war.” Id.

Justice Scalia had it exactly right. James Madison had written to Thomas Jefferson on April 2, 1798: “The constitution supposes, what the history of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. [The Constitution] has accordingly with studied care, vested the question of war in the Legisl[ative].” Indeed, at the Constitutional Convention, when it was proposed that the President have the war power, Elbridge Gerry stated that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318 (Max Farrand, ed. 1911) (“Farrand’s Records”). Charles Pinckney similarly stated that giving the war power to the President “would render the Executive a Monarch, of the worst kind, towit an elective one.” 1 Farrand’s Records 65.

To be sure, Madison recognized that the President, without congressional authorization, had “the power to repel sudden attacks.” 2 Farrand’s Records 318. By like reasoning, Presidents as the Commander-in-Chief have the power to order military attacks against foreign nations when emergency circumstances leave no time to go to Congress. That includes when Americans or American territory or personnel have been attacked or face imminent attack. It also includes when there is a secret opportunity to protect our country from an enemy nation and that secret would be revealed to our enemy by going public with potential attack plans.

But none of that was the case here. The President bombed Iran nine days after Israel did–about which the President said he knew days in advance–and two days after saying his unilateral decision whether to bomb would occur within two weeks. There was no secret, and there was time to seek congressional authorization. Indeed, the President has been candid in not claiming that he lacked time to seek congressional authorization. Although Vice President Vance has asserted that “[w]e might not have been able to carry out this attack six months down the road,” it would not take six months to seek congressional authorization. Two weeks would have been more than enough. This is demonstrated by Congress’s prompt authorization of prior wars, and its record of promptly enacting legislation to combat domestic national crises such as Covid and the 2008 financial collapse.

The President has also been candid in admitting that bombing Iran constitutes war. When he announced on Saturday that the bombing of Iran had occurred, the President stated on Truth Social: “IRAN MUST AGREE NOW TO END THIS WAR!”    The Vice President added on Sunday: “We’re at war with Iran’s nuclear program.”

The what-abouters may argue that President Trump is not the first President to order an act of war without congressional authorization when there was time to seek it. They could cite President Obama’s bombing of Libya or President Clinton’s bombing of Serbia. But those merely show that the nullification of the separation of powers in the war powers area, as in so many areas, lamentably has been a bipartisan operation. The federal courts likewise have their fingerprints on the dismantling of the Constitution’s vesting of the war power in Congress. The federal judiciary has abandoned upholding that congressional prerogative, always ruling instead that the litigants seeking to vindicate Congress’s war power lack standing or are raising a nonjusticiable political question.   That both major parties and the courts have been complicit in the demise of the power of Congress over war only magnifies the danger posed to the checks-and-balances system of government required by our Constitution.

It does not matter under the Constitution whether the decision of the President to bomb Iran was wise or foolish as a matter of foreign policy and national security. The question is which Branch, under our Constitution, has been vested with the power to engage our nation in war, whether the war is a “good” war against an Iran led by an evil regime or a “bad war” against peace-loving Greenland. The Constitution gives the war power to Congress for good and bad wars alike.

No one was a better Commander-in-Chief than George Washington. Washington also explained in his 1796 Farewell Address that the Constitution required “reciprocal checks” on every branch’s power because experience taught of the “love of power, and proneness to abuse it, which predominates in the human heart.” Washington warned that the “usurpation” by one branch of a power vested in another branch “though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”

Washington understood that our nation’s security required both wise use of our military and strict adherence to separation of powers. Even if bombing Iran was wise foreign policy, the cost to the separation of powers of the President’s ordering this bombing without congressional authorization was too great. Unfortunately, the federal courts will not say this as they have long since abandoned any role in enforcing the Constitution’s allocation of the war power to Congress.

The Military Threat at Home

Each time where we substitute an Imperial Presidency for our Constitution’s system of checks and balances, we encourage Presidents to exercise unilateral power in other areas. As Washington explained, that’s human nature. We also condition Americans to think of the President as the entire government, not merely one branch of the federal government. These dangers are especially pernicious for military power. In light of recent history, who could blame Americans for thinking that the Constitution gives the President absolute control over the military. It does not. In particular, it is Congress, not the President, who makes the rules for the use of the military domestically.

To start, Clause 14 of Section 8 of Article I of the Constitution vests in Congress, not the President, the powers “To make Rules for the Government and Regulation of the land and naval Forces.” Thus, Congress, for example, has made it a crime for the military to be present at the polls during elections and to interfere with election officials. See 18 U.S.C. Sections 592-593.

Clauses 15 and 16 of Section 8 of Article I vest Congress, not the President, with the power to set the rules for “calling forth” the National Guard and “for governing such Part of them as may be employed in the Service of the United States.” Congress has done so in statutes such as 10 U.S.C. Section 12406. The contours of Section 12406 are now being addressed by the federal courts with respect to the President’s deployment of the California Guard in Los Angeles.

Whatever the outcome in that specific case, the federal judiciary must not abandon its vital role in interpreting and enforcing federal statutes that limit the use of the military domestically, including the National Guard. The greatest exponent in the 20th Century of enforcing the Constitution’s limits on unilateral executive power was Justice Robert Jackson. He also had been a Nuremberg prosecutor, where he had examined how unbridled executive power had destroyed Germany and cost millions of Jews and others their lives. He wrote that when a President sought to use the military domestically, “[n]o penance would ever expiate the [judicial] sin against free government of holding that a President can escape control of executive power by [congressional] law through assuming his military role.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645-46 (1952) (Jackson, J., concurring). He warned that if the courts allowed once a President’s use of military power domestically without congressional authorization, that alone would not “plunge us straightaway into dictatorship, but it is at least a step in that wrong direction.” Id. at 653. Even assuming Section 12406 authorized the President’s recent deployment of the National Guard to Los Angeles, the federal courts must heed Justice Robert Jackson by emphasizing that they will enforce the limits set by the Congress on the use of the armed forces and National Guard domestically.

William F. Buckley Jr. wrote that conservatism “stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.” STOP! Perhaps it is too late to restore separation of powers in matters of war. But the continuing survival of our Republic as framed by our Constitution demands that we do not give up the fight for the Constitution’s separation of powers in other matters.