Can Courts Stop the War in Iran?

The Democrats, having failed in Congress to crimp the commander in chief’s war powers, are looking to the federal courts to stop America’s war against Iran. This would escalate the constitutional conflict over who wields the war powers of the federal government. Yet the measure on which the Democrats are counting to thwart the president’s authority over national security, the War Powers Resolution of 1973, is dubious. That isn’t deterring a liberal legal sage, Erwin Chemerinsky, the dean of Berkeley’s law school. He denounces as “illegal” the military campaign to stop Iran from, among other aims, getting a nuclear weapon. Mr. Chemerinsky laments that Congress has so far failed to act to halt the war. He avers that on Friday, when a deadline looms under the War Powers law, the “time will be up” for the war, and “it is the obligation of the federal courts to say so.”To enforce the War Powers Resolution, Mr. Chemerinsky urges that “suits should be brought, including by service members and by members of Congress.” The war powers resolution was enacted by a Democratic Congress over President Nixon’s veto. The law sets a 60-day limit on the president’s deployment of troops, unless Congress deigns to approve such action. A president, by vowing “unavoidable military necessity,” is allowed a 30-day extension. Mr. Chemerinsky reckons that the Framers “unquestionably intended that the power to use military force lay with Congress.” It’s more accurate, in our view, to say that the Founders divided the war powers. Plus, too, the grant of power to the president to run the military “implies the ability to exercise his or her judgment as to when national security warrants a deployment of the armed forces — often on short notice,” these columns have argued.“The circumstances that endanger the safety of nations are infinite,” Hamilton asserted in 23 Federalist, “and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” The first Treasury secretary, to be sure, anticipated lawmakers and presidents working together in a spirit of “Energetic Government.” Yet if Congress fails to grasp the urgency of a security threat, a president’s judgment must prevail.The War Powers law of 1973 upends that constitutional balance, a point Nixon grasped. The Framers, he reported in his veto message, “recognized that foreign policy decisions must be made through close cooperation between the two branches and not through rigidly codified procedures.” The 1973 law, he added, “would violate those principles by defining the President’s powers in ways which would strictly limit his constitutional authority.”Federal courts have rejected efforts to enforce the War Powers law, because the challenges amounted to what Mr. Chemerinsky calls “political questions that they cannot decide.” The dean laments that federal courts failed to rule against presidents in cases like Crockett v. Reagan, from 1982; Doe v. Bush, from 2002; and Kucinich v. Obama, from 2011. “These decisions make meaningless Congress’s war powers,” Mr. Chemerinsky fumes.Mightn’t it be the case that the law itself fails to pass constitutional muster? Mr. Chemerinsky insists that “the courts should simply hold that the War Powers Resolution requires the president to end our involvement in the war with Iran unless and until Congress authorizes it.” Should the Democrats accept the dean’s dare and attempt that case in federal court, they could well find the 1973 law in the constitutionalist crosshairs of the Supreme Court’s majority.

Can Courts Stop the War in Iran?

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