Don’t expect the Supreme Court to decide whether the Iran war is constitutional

The judiciary has largely stayed out of the ongoing constitutional debate over presidents launching undeclared foreign wars. I previously argued that the conflict with Iran is unconstitutional because President Donald Trump took the United States to war without a congressional declaration of war. In response, a reader identified as "John A." wrote: "Unconstitutional perhaps, but enforcement is political, not judicial." As a practical matter, that assessment is likely accurate.

The Constitution vests the power "to declare War" exclusively in the hands of Congress via Article I, Section 8, yet for roughly the past half-century the Supreme Court has shown reluctance to hear challenges to executive-led wars that lack formal congressional declarations. In 1970 the Court declined to hear Massachusetts v. Laird, a case in which Massachusetts asked the Court to rule on the constitutionality of the Vietnam War, which—like the current Iran conflict—was never formally declared by Congress.

Justice William O. Douglas, dissenting from the Court’s refusal, wrote: "Today we deny a hearing to a State which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war," and added, "Another way of putting the question is whether under our Constitution presidential wars are permissible? Should that question be answered in the negative we would then have to determine whether Congress has declared war. That question which Massachusetts presents is in my view justiciable."

The Court offered no detailed explanation for turning away Massachusetts v. Laird and similar Vietnam-era cases. Legal scholars generally conclude the justices treated the issue as a "political question" best left to the president and Congress. As Michal Belknap noted in The Oxford Companion to the Supreme Court of the United States, the Court was "unwilling to precipitate a conflict with the Executive, the Court protected its institutional interests by leaving the question of the legality of the war to be resolved in the political arena."

That restraint contrasts with instances when the Court has checked executive power. In Youngstown Sheet and Tube Company v. Sawyer (1952), the Court rejected President Harry Truman's contention that "inherent" executive authority allowed him to seize private steel mills during the Korean War for national security reasons. The Court wrote: "The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President," and emphasized that "the Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times." The decision added that "it would do no good to recall the historical events, the fears of power, and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand."

The logic of Youngstown undercuts the idea that the president may undertake major domestic or foreign actions without congressional authorization, just as it rejected an executive seizure of private property without statutory authority. Nevertheless, the political-question doctrine has repeatedly provided a legal rationale for the Supreme Court to avoid deciding whether presidents may wage undeclared wars. That tradition of judicial abstention appears likely to continue.

If a president faces consequences for initiating military action without Congress's formal declaration, those consequences are more likely to be political than judicial given the Court's long-standing reluctance to adjudicate such disputes.