“Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there is an immediate threat to our national security?”
As recounted in the Lever’s upcoming new season of the Master Plan podcast, this was the big question then-senator Joe Biden pressed Supreme Court nominee Samuel Alito to answer during Alito’s nationally televised 2006 confirmation hearing almost exactly two decades before Donald Trump launched his new war in Iran.
“Well, that is a question that I don’t think is settled,” Alito responded. “The president has the power of the commander in chief. I think there has been general agreement, and (previous) cases support the authority of the president to take military action on his own in the case of an emergency, when there is not time for Congress to react.”
Alito’s answer is no longer a historical artifact. It could become a live issue as Congress potentially votes this week on a resolution invoking the War Powers Resolution to try to halt or limit President Donald Trump’s new war in Iran, which was launched without congressional authorization or proof of an imminent threat.
Any showdown over warmaking powers — whether over the passage of a new war resolution or over enforcement of the existing statute — could ultimately end up in court. Such a case could give conservative justices their long-awaited opportunity to end Congress’s power to limit presidents’ warmaking powers and to explicitly strike down a post–Vietnam War–era law many on the Right have questioned.
The 1973 War Powers Resolution declares that the president can only “introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” when there has been “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency…
Auteur: David Sirota
