FindLaw's Writ - Dean: Leading Experts Say Congress Must Stop An Attack on Iran Is That Constitutionally Possible?

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FindLaw's Writ - Dean: Leading Experts Say Congress Must Stop An Attack on Iran Is That Constitutionally Possible?


In a February 5 OpEd in the Los Angeles Times, Leon Weiss and Larry Diamond explained that they were uncertain whether President Bush's recent tough talk toward Iran was bully pulpit bluster, meant solely to control Iran's dangerous actions, or if the President was again on the road to war. (Weiss is a senior science fellow at the Center for International Security at Cooperation at Stanford University; Diamond is a senior fellow at Stanford's Hoover Institution.)
Accordingly, Weiss and Diamond called on Congress to find out which is the case, and, if the President's intention is indeed warlike, to take preventive action so that the President does not launch a war in Iran - given his performance in Iraq. They suggest sending the President what is, in effect, a veto-proof measure -- by placing the measure in an appropriations bill - advising the President that "Congress will not support a U.S. military strike on that country" unless authorized by Congress. If Bush were to violate such a law, they urged, Congress should file a lawsuit against him, and begin impeachment proceedings.
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James Fallows expressed a similar concern about the Administration's actions in Iran in his recent Atlantic Monthly column. "If we could trust the Administration's ability to judge America's rational self-interest, there would be no need to constrain its threatening gestures toward Iran," Fallows suggested. Such trust, however, has not proven to be merited. Nevertheless, Fallows concluded, even if the Bush Administration has warlike intentions with respect to Iran, Congress can do nothing other than "draw the line. It can say that war with Iran is anathema to the interests of the United States and contrary to the will of its elected representative."

These commentators have raised the question of whether Congress can, in fact, prevent a president from taking the nation to war. This was the subject of a recent Senate Judiciary Committee hearing chaired by Senator Russ Feingold, where he sought to explore "not what Congress should do, but what can Congress do."

While the hearing was focused on Iraq, and Congressional power in general, Senator Edward Kennedy (D-MA) specifically asked the panel of constitutional experts, during the questioning, about what legal restrictions might be placed on the president's going to war in Iran.
Because the constitutional experts submitted formal statements to the Committee, which are available online, and several of them are terrific briefs on the law and relevant history, I have linked those statements to their names. Rather than rely solely upon their own summaries of their positions, given during the hearing, I have instead cited from, and commented on, their prepared statements seeking to set forth the essence of their positions.

What is especially significant, in my eyes, is that the conclusion that Congress does indeed have power to significantly restrict the Administration in its plans for war, transcends politics: Even experts who have worked for Republican administrations have come to this conclusion.
Statements of Constitutional Experts

Professor David Barron from the Harvard Law School opened the testimony. Barron is a graduate of Harvard Law School and clerked for Judge Reinhardt on the U.S. Court of Appeals for the Ninth Circuit, as well as for Associate Justice Stevens on the United States Supreme Court. He served as an attorney advisor in the Office of Legal Counsel at the Department of Justice, before joining the faculty at Harvard Law School in 1999.

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