How Decades of Presidential Overreach Led to an Undeclared War with Iran

CHRISTIANE AMANPOUR: Defense Secretary Pete Hegseth has described “another day of death and destruction raining down,” that’s a quote, on Iran. While also, in Washington, Democratic Senators are trying to rein in the president. Today, the House took up the challenge, after those Senators yesterday failed to invoke the War Powers Act.

 

But our next guest argues that lawmakers still can and should push back. Noah Feldman is a Harvard Law professor. Speaking just before the Senate vote, he reminds Hari Sreenivasan how letting past presidents’ war-making go unchecked led up to this moment now.

 

HARI SREENIVASAN: Christiane, thanks. Noah Feldman, thanks so much for joining us. You wrote an op-ed recently in the Bloomberg opinion section, and it said, “When you bomb a country and take out its leader, that’s an act of war.” I guess a fairly simple, basic definitional question: are we at war right now or not?

 

NOAH FELDMAN: Under any international law definition, we’re absolutely at war. And under the Constitution, the word war, according to our Supreme Court, takes on board, the meaning that comes from the international law of war. So I would say that under our constitution, yes, we’re absolutely at war right now. We’re shooting, they’re shooting, we took out their supreme leader. Countries have sovereign rights to choose their own supreme leader, even if we hate that supreme leader. So yeah, it’s a war.

 

SREENIVASAN: Trump’s military strike in Iran is, for a lot of people, part and parcel of a pattern that American presidents have been practicing for quite a while. So if you could refresh our audience, how did we get to this point where the president, a president, of the United States, can launch a military attack on another country without having to let Congress know or get permission?

 

FELDMAN: It happened in three stages. At the first, beginning of our country, there was really no way that a president could make war without waiting for Congress to declare it. Because we didn’t have a standing army. That means there weren’t any — not very many at all — U.S. military troops to say nothing of. You know, there were five or six warships, definitely no planes. So if they started a war, if the executive started a war, Congress had to allocate the funds to pay the soldiers to build the ships and so forth and so on. So the system was set up under the Constitution to say, Congress has to declare war, and only then can the President do it. And it worked. After World War II, we’d built up the biggest military in the world, and then we had nuclear weapons so the president could, you know, take out a whole civilization with the press a button. And we keep our military going. And once that happened, it became much harder to stop the president from using military force. 

 

And things kind of reached a head in the Nixon administration, when Richard Nixon bombed Cambodia and Laos secretly — it’s hard to believe it now, but he did it secretly — expanded the Vietnam War without authorization from Congress. And, and Congress said, enough is enough. And so they passed a law called the War Powers Resolution. And it says that when the president attacks and engages in hostilities against a foreign country, he’s got two days to tell Congress that he’s doing it. So no secrets. And then after 60 days, unless Congress authorizes the hostilities, they’re illegal. So that’s the legal framework that’s in place. Nixon didn’t like it, but Congress passed it over Nixon’s veto. So two thirds of the House and the Senate passed it. 

 

That’s the law presently. But — here’s the big but–  if the President violates the law, there’s not that much that Congress can do about it. So Bill Clinton was bombing Kosovo. He went two weeks beyond the deadline and he just did it. Congress didn’t like it, but it happened anyway. Then Barack Obama decided to bomb Libya and he didn’t even bother to get authorization from Congress at all. And he got an opinion from the State Department contradicting the Department of Justice that said that if you’re bombing a country from the air, for a limited objective, there’s not that much risk of escalation and not much risk to U.S. troops. So you can just do it, and it doesn’t even count as hostilities for purposes of law. Now that’s ridiculous. And you can see why, because Donald Trump just did exactly the same thing in bombing Iran. And we’re at war. You know, people are on the other side fighting back. U.S. troops have already been put in harm’s way and some tragically have died. 

 

SREENIVASAN: Okay. So if Congress is having these debates — we are having this conversation Tuesday afternoon. Somewhere in this week the House and the Senate may try to bring this up. Is this entirely theatrical? Because what’s the point? I mean, we literally are doing something to another country now. The president has taken this action almost unilaterally. And his lawyers will say, I’m doing what several previous presidents have done, so I don’t really care if I get your approval right now or not.

 

FELDMAN: So Hari I agree with your description, but I wouldn’t use the word theatrical. And, and here’s why. 

 

SREENIVASAN: Okay. 

 

FELDMAN: Congress passes a War Powers Resolution that says, Mr. President, you need our authorization for this and you don’t have it. Trump will veto it. There’s no question. And there’s not gonna be a two-thirds majority to overcome the veto. We no longer live in the world where, you know, both parties thought that Congress’s power was more important than the President on their team. So in that sense, you’re right that it’s not gonna stop the fighting. It’s not gonna stop the war. The reason it’s more than theatrical though, is that Congress is a branch of government. And the only thing it can do under these circumstances to start with is insist on its own authority. And over time, if Congress really had the guts to do it, they could reduce funding. They could pass another law that said, you know, Mr. President, you can’t use funds that we’ve allocated to you to fight this war. And although in this particular instance you’re right, it’s not gonna change anything, that’s how Congress gets its power back. Congress has to find a way to reestablish some of its power over a declaration of hostilities and war.

 

SREENIVASAN: You know…exactly what constitutes an immediate threat to the homeland? Is there any evidence here of an immediate threat posed to the American homeland, so to speak, or — I mean, because we’ve had different kinds of objectives stated by the administration. One was to defend the American people by eliminating imminent threats from the Iranian regime. We knew that there was going to be an Israeli action. We knew that there would — that would precipitate attacks against American forces. And we had to sort of go in preemptively. I mean, how do you reason out what the case is that the United States can make, or President Trump can make, to Congress to say this action’s justified?

 

FELDMAN: Well, Hari, you’re really getting into the heart of the matter now, ‘cause you’re right, that no constitutional expert disputes that if a country invaded us, the President could defend us unilaterally. There’s no question about that. And if a country was about to attack us or attack our troops or invade us, that’s also gonna count as an imminent threat. And then you get into the tricky question of how imminent does it have to be? How imminent is imminent? And when the administration just declares, well, we’re under imminent threat, that declaration could be true, but they need to provide some facts that support that interpretation. 

 

The idea that Israel was going to attack inevitably, and that then that would lead to retaliation against us. So that we should act inevitably, it’s a possible argument under some circumstances. But of course Israel is also our ally, and this was a coordinated attack. And if the President had said to Prime Minister Netanyahu, Listen, don’t attack this day, attack this other day, or attack it this other time, or don’t attack at all, it’s certainly conceivable that Israel would’ve agreed with that. In fact, I think it’s probable. And so for the president to say, Well that was gonna happen no matter what. So we had to ask preemptively – creates a kind of, you know, it’s a kind of slippery slope that basically under almost any circumstances we could generate a justification for going to war. 

 

So to be clear, this isn’t the first time that this question has arisen. There was a huge national debate about whether we should go to war in Iraq and whether Saddam did have weapons of mass destruction — which he did not, it turned out in the end. So it’s not a simple question under any circumstances. But I will say that the Bush administration did actually get congressional authorization for invading Iraq, famously, which did not happen under these circumstances. And so the justification matters not just for international law, which doesn’t care whether Congress or the President did it, but for our own domestic constitutional law. 

 

And just the last thing I’ll add, Hari, is that it’s important to realize that this conversation we’re having about whether the president was authorized under the Constitution has nothing to do with whether you think the war is a great idea or a terrible idea. 

 

SREENIVASAN: Right. 

 

FELDMAN: Those are completely independent questions. You could believe that this is an absolutely necessary war, that it’s gonna advance U.S. interests and it’s a great thing and that it’s unconstitutional. And you could also believe that it’s a terrible idea, but that the President has the authority to do it. There are different questions.

 

SREENIVASAN: So I guess play out for me why Congress should go through the process of taking this vote, putting this on the record. What sort of either support or regathering of their own strength does this mean for Congress?

 

FELDMAN: In the story I was telling about how we got here, it’s a story about the executive taking more and more power. It doesn’t matter what party the president was, two Democratic presidents played a big role in that too – and Congress not really doing much about it. And that’s how over the long term, one branch of government loses power to another branch of government. Right, it’s like any other relationship in which if one person takes advantage and the other person doesn’t say, Hey, you can’t do this, this is not normal, this is not okay. Then more advantage keeps being taken over time.

 

And that’s why Congress has to speak out. Even if it can’t, in the short term actively block the president, it has to create the record to create the norm that this is not normal. That this is not okay. And if there’s sustained objection over time, that has the capacity to make a difference.

 

One more analogy for what it’s worth. You know, we saw in Minnesota that when the Trump administration, at least in my opinion, was violating the law pretty regularly, the courts were saying they were violating the law. And people stood up and protested in a long-run, serious, sustained way. The effect was that ultimately the Trump administration had to back down to some meaningful degree. So creating sustained resistance sends the message that the law is real. That the law is the law. That we’re not afraid to stand up for the law. And that makes the rule of law stronger. And I think that’s a really, really important thing to keep in mind for Congress, just the same way it is for citizens.

 

SREENIVASAN: Okay. Let’s say that they vote on this, the resolution fails. Is there any recourse that Congress has to decrease the harm being done right now?

 

FELDMAN: Congress has the power of the purse. So if a majority of Congress were to pass a law that prohibited expenditures, say of allocated funds for purposes of fighting this war, then that would also have an impact. But again, that would have to be a law, so Donald Trump could veto that. And he would veto it. And realistically there would not be the votes to pass the veto, almost certainly. So again, that would also fall into the category of a step of recognizing that this, this is not normal, this is not okay. But it would not on its own fundamentally transform it. So to be realistic, we’re in this now and we’re gonna continue to be in this war.

 

SREENIVASAN: So what are the parallels here between what happened when we went into Iraq in 2003? And I’m asking because you were advising the Iraqi government and drafting, helping draft its interim constitution. I mean, do you see this as being markedly different?

 

FELDMAN: I should just say I advised in two stages. First I was an advisor to our forces, the coalition provisional authority, which was the civilian force that we had in Iraq. And then I transitioned to working directly with the Iraqis who drafted their interim constitution. I think this is so far pretty different, even though the early stages look kind of similar. So in 2003, we started famously with the quote unquote “shock and awe” campaign, which was a very targeted series of attacks from the air focusing on government structures and government buildings. It was hard to know exactly how many civilian casualties there were, but…they may or may not have been greater than we’re experiencing now. Again, the fog of war makes it hard to know that for sure about what’s going on now. So it started that way. 

 

But remember that when we were doing that, we had also amassed in Kuwait, hundreds of thousands of troops who were getting ready to invade the country. And no one was any serious at — in any serious doubt that that was going to happen in one form or another. That’s where the parallel really comes to an end. We’re not doing that at this moment in time. And we’re not even talking about doing it. And so in the game theory of war, as the Iranian regime tries to figure out what they should do in response to try to stay alive, which is what any regime will always try to do, they know we’re not coming in with troops. And so it appears that their strategy will be — at least thus far — to try to broaden the war to retaliate asymmetrically against U.S. troops and maybe eventually US civilians in different parts of the region and potentially even in different parts of the world. And see if they can raise the cost to the United States of our continued bombing. And see if we’ll give up. And if we give up at that point, they will still have suffered an enormous blow to their national power and their national prestige.

 

SREENIVASAN: When we look at these kind of structural hurdles, one is this almost perpetual reauthorization of the use of military force, and that really goes back to post 9/11. Why is that important for Congress to sort of tackle regularly?

 

FELDMAN: When Congress authorizes the use of military force in a very open-ended way, as happened on September 18th, 2001, that opens the door to a president to connect the dots as it were, and say, Oh, this part of this conflict is connected to that part of that conflict, which takes us all the way back to Al-Qaeda, and then I’m authorized in taking these actions. So it would be a great thing for Congress to do the cleanup that’s necessary sometimes — and it’s hard for this to happen politically — and say, the authorization for use of military force that we passed at this time is now officially over. We’re closing the book on that particular chapter.  In this case, the Trump administration hasn’t yet been able to claim that a prior authorization of military force credibly covers this attack on Iran. But that is the kind of thing that does happen sometimes. And so best practice is if you’re gonna authorize force, sometimes you say, okay, it’s over now. 

 

And I’ll just add there that historically when Congress declared a war, the war had a beginning, they declared it, and then it had an end, when one side, usually the other side — fortunately for the United States — gave up and signed a peace treaty. But now where, you know, you could have a conflict against a terrorist group that’s never gonna announce that it doesn’t exist anymore, even if it’s not a real threat, it would have to be a unilateral act on our part to say the war is over. And that’s politically hard to get Congress to say.

 

SREENIVASAN: Now, you were on the program what seems like a dog-year ago, back in February of ‘25. And you said at that time, look, you know, a constitutional crisis is when these two branches of government are staring each other down. We both are unwilling to back down. We haven’t gotten there yet, I think is kind of what you were getting at. Are we there now? 

 

FELDMAN: We’re not in a constitutional crisis now under the definition that I like to use that you just, you just quoted. If you think about it, the Supreme Court is not completely lying over, you know, rolling over and playing dead. The Supreme Court did block the tariffs that Donald Trump announced under IEPA. That was his signature, both foreign policy and domestic initiative. That’s a huge deal. It’s not everything I wish the Supreme Court would do. But it’s not nothing. It deserves to be acknowledged. And Donald Trump did not respond to that by saying, who cares who you are? I’m ignoring you. If he had done that, that would’ve been a constitutional crisis. But instead Trump said, ‘well, I’m gonna rely on other sources of legal authority. I’m gonna try again and give the court a chance to rule again.’ So that was an important moment of not being in a crisis. 

 

And with respect to the attack on Iran, that doesn’t generate a crisis because Congress has not — by a majority — passed a law or even in a, by a veto proof majority said, you can’t do this. So there’s no head-to-head disagreement between the branches. And indeed lots of people in Congress basically, I think, think this war makes a lot of sense and is worth taking a risk on and are willing to therefore make secondary the concern of the role of the president vis-a-vis Congress. And so there’s enough agreement there that I would not call it a crisis.

 

SREENIVASAN: What does it do going forward with whoever the next president is, whatever their interests are in taking military action. Does this move that gate a little further out, saying ‘well, not only do I have reference to what President Bill Clinton did in Kosovo and H.W. Bush did in Panama and Obama did in other places, I also have THIS –  look at what we did in Venezuela. Look at what we did in Iran.

 

FELDMAN: Yes. Every extension of executive power becomes a precedent that the next president, regardless of the political party that he or she is, can follow. So we’re getting further and further away from the constitutional idea that Congress is the people’s branch and it declares war and further and further in a direction that the framers would’ve called an imperial direction, where the President gets to make these decisions basically unilaterally. And that’s why the historian Arthur Schlesinger already back in the seventies said, we had an imperial presidency. And if you look now, he would say, wow, it wasn’t an imperial at all then, but now it’s getting really, really imperial. And it’s getting us further and further away from the constitutional design that put Congress in charge of whether we went to war.

 

SREENIVASAN: Harvard Law School Professor Noah Feldman. Thanks so much for joining us.

 

FELDMAN: Thanks for having me Hari.