Answer

President’s air strike

            According to the Constitution, the President is given one obvious power when it comes to national security. He or she becomes the Commander in Chief[1]. This means that the President has a role to play on commanding the armed forces whenever they are called to serve the country. Therefore, when the findings from the intelligence team revealed that there was an impending attack on the U.S. ships in the Persian Gulf, the President was required to act.

Authorization of the Congress through the Appropriation Bill

            Through the Appropriation Bill, the President may argue that he had already expressed his authorisation of the Congress. He had the War Powers Resolution which gave him an authority to order the U.S ship to carry out an air strike against the Iran land-based military installations. The War Powers Resolution intends to “insure that the collective judgement of both the Congress and the President will apply to the introduction of the United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances and to the continued use of forces in such situations.”1 Therefore, it is clear that the order to attack the Iran military installations was not done according to the requirements of the War Powers Resolution. Such force was only authorised when the Congress appropriated the funding for the President to deploy the military in acts of protecting the United States’ citizens. In this case, the authorisation was not sought.

            However, there are certain constitutional powers of the president, awarded to him as the Commander-in-chief to introduce the Armed Forces into certain situations involving hostilities. It is indicated that these are acceptable only pursuant to “1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forced.”1 Hence, in light of these specifications, it is clear that the appropriation bill satisfies the section 2 (c) (2). In addition, the Appropriation Bill also satisfies section [§1542] which indicates that in all instances, the President shall consult with Congress before ordering the Armed Forces into certain situations where hostilities may be involved.1 

            In the current situation, it is evident that the President had already informed the congress of the situation where there was an imminent danger as indicated by the 10 Iranian warships meant to block the strait of Hormuz. He had already obtained the consent of the Congress, which was given in the form of the Appropriation Bill. It was only after this authorization that the president deployed 20 armed warships to the Persian Gulf. Hence, the Congress was already aware of the impending danger, which also meant a possibility of continued use of force which was meant to protect the citizens of the United States.

            There is, however, a possible problem regarding the President’s authority. The fact that he ordered an airstrike from the appropriations bill presents a major issue. Luckily, this can be avoided by considering the exception which applies to the appropriation bill in the Section 8[§1547]. It indicates that “[a]utority to introduce United States Armed Forces into hostilities or situation wherein, hostilities is clearly indicated by the circumstances shall not be inferred from any provision of law including any provision contained in any Appropriation Act, unless such provision specifically authorizes the introduction of the United States Armed Forces.”1 This exception has been satisfied in the Appropriation Bill since it authorises the deployment of 20 warships with an intention of patrolling the Persian Gulf and protecting the citizens of the United States. Thus, by ordering an airstrike, the President was acting to protect the citizens of the United States as authorised in the appropriations bill.

Acting in Pursuant to an Implied Authorization of Congress

            According to National Security Law, “When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”1 When the Congress appropriated the finding of 20 armed warships to be deployed to the Persian Gulf, it implied an authorization of Congress. That is why it can also be argued that the President was still acting under this appropriation bill.

            In the case Orlando vs. Laird, the Court analyzed whether the congressional authorization for war is enough without an express authorization.[2]  The Court held that the mutual participation between the Congress and the President is enough when it comes to authorizing war.2 Berk and Orlando were among those who were ordered to deploy to Vietnam. However, the plaintiff took action to prevent the deployment by arguing that the executive officers did not have any constitutional authority to order their participation in a war that was not authorized by Congress.2

            Therefore, a similar explanation is expected in the current case whereby it can be argued that there is enough action from the Congress to authorize the action taken by the President. Just like it was the case in Orlando vs. Laird, the Congress appropriated funding for 20 warships. This satisfies the test on whether mutual participation existed between the Congress and the President.

The President was Still Within his Power to Order the Air Strike

            Even without the Congressional Authority, it can be argued that the President still acted within his power. This can be seen through the defensive war powers and the customary war powers. With regards to his defensive war powers, it is clear that the president felt obligated to resist force by force.1 Therefore, even though he did not have power to actively seek war, the invasion of a foreign nation presented a threat that challenged the safety of the nation. Therefore, not only did he have the authority to act, but also the obligation to defend his country.

            The United States has, in the past decades, deployed its armed forces abroad a lot of times. In most of these instances, the Congress has not expressed approval. That is because the President managed to do so by use of his customary war powers which gives the power for “protective intervention.”1 Therefore, in the current case, it can be argued that the customary war powers for protective intervention was used to secure 20% of the world’s petroleum.

Authority under Anticipatory Self-Defense

According to the Article 51 of the United Nations Charter, the right of individual self-defense has been authorized. It states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”[3] Therefore, it is clear that the targeted states do not need to wait until they are under attack for it to defend itself. As long as the attack is in the process of being carried out, a State will have a right of taking action in self-defence. In the current situation, the Iranian warships had already been deployed, and the army had already started establishing a military facility to carry out an attack on the United States. It was already clear that the attack was underway. Therefore, the President had a right to attack before the actual attack on the United States had taken place.

Although the President would have been in a better position had he notified the Congress before the attack, it can still be argued that he was acting under its implied authorisation. Also, the fact that the attack was meant to take place within five days did not leave enough time for the complete process of informing and gaining authorisation once again.

Conclusion

            Considering the arguments presented above, it is evident that actions of the President were in line with relevant law, as well as the Constitution. He had acted pursuant to the expressed and implied authorization of the Congress through the Appropriations Bill. Therefore, even without the consent of the Congress on the actual action of an airstrike, the President was still within his powers. It is clear that he not only had the powers to order a strike, but was also obligated to take action since he had to protect the lives of the American citizens.

[1] Stephen Dycus et al., National Security Law 8 (6th ed. 2016), 30-360.

[2] Orlando v. Laird. 443 F.2d 1039 (2d Cir. 1971) (United States Court of Appeals, Second Circuit, April 20, 1970).

[3] United Nations. UN Charter, Article 51.