On Jan. 3, on the orders of the President of the United States, a drone strike assassinated Iranian General Quasem Soleimani and nine others at Baghdad’s International Airport in Iraq. The attack was conducted without explicit Congressional authorization and absent even notification of Congressional leaders such as House Speaker Nancy Pelosi.
Soleimani, considered among the most powerful figures in Iran, was the leader of Iran’s Quds Force, which handles military operations abroad as well as clandestine ones. Soleimani had deep connections with a number of Iranian-backed proxies throughout the Middle East and was considered one of the principal architects of Iran’s foreign policies, especially in the Middle East. Many of the proxies Soleimani had ties to have been designated terrorist organizations by the United States, as has the Quds Force itself.
Soleimani has long been on America’s radar. Presidents George W. Bush and Barack Obama both declined to authorize strikes on him. Soleimani was undoubtedly a foe of America and responsible for the deaths of a number of Americans through operations he organized, financed, and directed through his proxy militias. But the former presidents reasoned that his assassination would likely serve to substantially inflame tensions between Iran and the United States and threaten retaliatory action that would result in more American deaths.
The fallout of the attack was stunning. The Iraqi Parliament, outraged at what they considered a breach of their sovereignty, passed a nonbinding resolution to expel U.S. service members from Iraq. The coalition fighting against ISIS was forced to suspend operations for fears of retaliatory attacks on their personnel. The United States and the Islamic Republic of Iran were launched into dangerous escalation, with many scholars arguing that the killing constituted an act of war by the United States.
Though since then both the United States and Iran seem to have taken steps to de-escalate the conflict, it still should be shocking that the United States lurched onto the precipice of war with a U.S. military strike while most of Congress, including Congressional leaders, were uninformed.
In the aftermath with Congress, the media and publc demanding answers, the Trump Administration provided a shifting set of responses before ultimately settling on the president’s Article II Commander-in-Chief powers to respond to imminent threats as a basis for the strike. However, administration officials contradicted one another and offered differing explanations on the nature, timetable and scale of the purportedly imminent attack.
This justification was signified by the administration sending a notification to Congress pursuant the War Powers Act of 1973. The report remains classified but reportedly members of Congress who have seen it and attended a subsequent briefing on the strike were left unimpressed.
This action has reignited many debates in the United States ranging from the need to repeal the Authorized Use of Military Force (AUMF) of 2001 and 2002 to what is the strategic vision and priorities of the country in the Middle East and how it should. be involved in the region. These are important and legitimate debates to have, but what should not be lost in the shuffle is that even if the AUMFs were repealed, this strike still could have gone forward, as the Trump Administration asserted Article II powers instead of statutory authority.
Thus, in examining how the United States came to stand on the precipice of war, one must examine Article II. This article of the Constitution outlines the powers of the presidency and has been at the center of several of the most notable controversies in the Trump Administration, from the Mueller investigation to the Trump-Ukraine scandal.
“Then I have an Article II, where I have the right to do whatever I want as president,” Trump has notably asserted,
This is a position legal scholars have roundly rejected, citing sections of Article II itself as well as Article I and Article III.
However, presidents asserting an expansive view of Article II, commonly called the Vesting Clause Thesis or the Royal Residuum theory, is not a new phenomenon. It has been central in the development of the Imperial Presidency, and presidents of both parties have been aggressive in advocating for it to enhance the authority of the presidency.
In this view, the president has a vast reservoir of powers that give them unrivaled preeminence in matters like national security and foreign affairs. This theory, while always controversial, has gained ascendancy in the public imagination since the Second World War.
Concern over presidential power in this realm and the president’s ability to entangle the United States in conflicts abroad with limited or no congressional authorization has been a perennial worry, especially since the Vietnam War – prompting erratic action by Congress such as the War Powers Resolution of 1973 to try to constrain the presidency.
The steady evisceration of democratic norms and traditions by the Trump Administration presents an opportunity to seriously reexamine this thesis. Whenever the Trump presidency ends and the task of rebuilding, repairing and strengthening America’s democratic institutions and norms begins in earnest, it will be worth reviewing the Vesting Clause Thesis to answer two primary questions: Were the framers, who had just fought a war against King George III and were adamantly against a single figure having the power to launch the nation into conflict, seriously intending to set up a system of governance in which the presidency had such immense powers in foreign affairs? If they did, is such a policy desirable after seeing the extreme degree it can be carried to?