'Might makes right'? Why experts have fears for rule of law

The United States' bombing campaign in Iran amounts to a war launched without congressional authorization, according to many legal and defense experts. But they also say courts likely won't step in to do anything about it, leaving Congress as the only potential check on the president − one that the Senate's March 4 vote against a resolution to rein in the assault suggests is unlikely to occur.

Some in the administration have also appeared dismissive of international law, raising fears that other countries will feel more licensed to ignore those restrictions. Secretary of War Pete Hegseth, formally the secretary of defense, said March 2 that the United States was unleashing its campaign "regardless of what so-called international institutions say."

"We're moving quickly toward a might-makes-right vision of war powers," former White House ethics lawyer Richard Painter, who served under President George W. Bush, told USA TODAY.

Many Trump administration officials, including the president himself, have referred to the military action as a “war.” The president never went to Congress for approval to strike the Iranian government. The Constitution gives Congress the power to declare war.

The Justice Department referred USA TODAY to the White House on legal questions about U.S. military actions in Iran.

A White House official told USA TODAY that the president has constitutional authority as commander in chief to defend U.S. interests at home and the administration believes Iran 's ballistic missile capability posed a direct threat to the United States and its allies because it shielded Iran's nuclear program.

Here are the legal restrictions on presidential military actions, what Trump officials have said about them, and whether any actual limits will be imposed.

Congress has power to declare war

The U.S. Constitution clearly states that Congress – not the president – has the power to declare war.

Most legal scholars interpret that provision to mean presidents can't initiate wars on their own, according to University of San Diego law professor Michael D. Ramsey and Georgetown University law professor Stephen I. Vladeck, who have written about the provision for the National Constitution Center, a nonprofit promoting constitutional education.

Yet the Trump administration didn't go to Congress for approval to launch a war against Iran's government before the United States and Israel launched a joint attack on Feb. 28. The countries swiftly killed Iranian Supreme Leader Ayatollah Ali Khamenei and President Donald Trump encouraged Iranians to overthrow the current regime.

"The lives of courageous American heroes may be lost, and we may have casualties," Trump said in his remarks announcing the attacks. "That often happens in war."

So far, six U.S. service members have died in the conflict. After the first deaths of service members, U.S. officials said to expect more casualties.

Trump also encouraged regime change in his remarks on the killing of Khamenei.

"When we are finished, take over your government. It will be yours to take," he said to the Iranian people in a video posted on social media.

Many legal and military experts say those conditions amount to the type of military action that must be authorized by Congress, a full-blown war.

"American service people are dying. It is a war," Painter told USA TODAY.

"The American president has said he's trying to destroy the government of Iran. That is war," Michael Clarke, an academic who focuses on military defense, said on Sky News.

Some Trump administration supporters argue that the country has not gone to war. "Strategic strikes are not war," Rep. Anna Paulina Luna, R-Florida, told MS NOW on March 1.

"We’re not at war with Iran. We’re making sure that they do not have the capability to harm us anymore," Sen. Markwayne Mullin, R-Oklahoma, said on CNN on March 2.

But also on March 2, Hegseth said, "We didn’t start this war, but under President Trump, we are finishing it."

Congressional oversight of 'hostilities'

In the War Powers Resolution of 1973, sometimes called the "War Powers Act," Congress expressed its view that the Constitution only allows presidents to initiate military "hostilities" without congressional approval if there's a "national emergency" sparked by an attack on the United States, its property, or its personnel.

In certain recent past wars, including the Iraq War, presidents have obtained explicit congressional authorization for using military force before proceeding, despite not having a formal declaration of war. (Many have argued that Congress' approval of the Iraq War was based on faulty intelligence.) That didn't happen here.

Presidents of both parties have also launched many attacks without express congressional authorization.

President Bill Clinton sent troops into Bosnia in 1995 as peacekeepers. President Barack Obama participated in a bombing campaign of Libya in 2011 to support the ouster of its leader, Muammar Gaddafi. Trump sent American troops into Venezuela in early January to seize its leader, Nicolás Maduro. None of those military interventions were expressly authorized by Congress.

The War Powers Act also allows Congress to force the president to remove troops from hostilities through a resolution, and generally requires the president to end the use of armed forces after 60 days unless Congress has passed a law explicitly authorizing the military action.

Yet Obama continued with military actions in Libya in 2011 after the 60-day deadline for getting congressional authorization expired, siding with lawyers in his administration who argued the actions fell short of "hostilities."

Still, the attack on Iran's government, including working with Israel to assassinate the country's leader, may be taking U.S. military intervention without congressional authorization to another level.

"At least [in Libya], the U.N. Security Council had authorized operations to stop [Libyan leader Muammar] Gaddafi from killing civilians, and there were some differences there. We also didn't have any U.S. casualties, or serious risk of casualties," Painter told USA TODAY.

Did the administration fail to notify Congress?

The War Powers Act also contains explicit requirements for the president, including consulting Congress "in every possible instance" before sending armed forces into hostilities, and submitting a report to Congress within 48 hours when troops have been sent into hostilities without a congressional declaration of war.

Some congressional Democrats say the administration also failed to fulfill that requirement.

"Congress needs to authorize a war against Iran, this Trump war against Iran. We have not. Congress should be consulted with it. We were not. And Congress needs to be notified, not after the fact, but in advance. We were not," said Sen. Tim Kaine, D-Virginia, on CBS News' "Face the Nation."

Secretary of State Marco Rubio has said the president has abided by the act, while also suggesting the act may not be legally binding.

"No presidents – presidential administration has ever accepted the War Powers Act as constitutional. Not Republican presidents. Not Democratic presidents," Rubio said this week from the Capitol.

"All of that said, we've complied with the law 100%, and we're going to continue to comply with it," Rubio added.

He said he notified a select handful of congressional members about the attack in advance, consistent with longstanding practice for sensitive or covert military operations, and reported to Congress more broadly after the initial attack.

What about international law?

International treaties that have been ratified by the U.S. Senate also carry the force of law within the United States. That includes the U.N. Charter, which was ratified by the Senate in an 89-2 vote in 1945.

The charter generally authorizes the U.N. Security Council to determine what to do – including using military force – in response to a threat to peace, but also allows a country to unilaterally use military force in self-defense "if an armed attack occurs." Some legal scholars have interpreted that provision to allow for military action if there is an "imminent threat" of an armed attack.

That may be why the Trump administration has sometimes been suggesting in recent days that an attack could have been imminent.

Rubio as well as House Speaker Mike Johnson, R-Louisiana, both said at Capitol Hill press briefings this week that Israel was going to attack Iran with or without American involvement, and that would have sparked an attack against the United States by Iran.

"We knew that there was going to be an Israeli action. We knew that that would precipitate an attack against American forces. And we knew that if we didn't preemptively go after them before they launched those attacked, we would suffer higher casualties," Rubio said.

"Because Israel was determined to act with or without the U.S., our commander in chief and the administration and the officials ... had a very difficult decision to make," Johnson said. "If Israel fired upon Iran and took action against Iran to take out the missiles, then they would have immediately retaliated against U.S. personnel and assets."

The president himself, however, appeared to call that narrative into question.

When asked by a reporter if Israel forced his hand, Trump said it didn't, but added that he believed Iran was going to attack the United States first.

"You see, we were having negotiations with these lunatics, and it was my opinion that they were going to attack first. So if anything, I might have forced Israel's hand," Trump said during an Oval Office meeting with German head of state Friedrich Merz.

Although Iran has been able to strike U.S. military assets in the Middle East, several national security experts have said the country was likely several years away from being able to make ballistic missiles that could reach U.S. soil.

Following Trump's remarks, Rubio walked back his earlier statement, saying the United States would have attacked regardless of Israel's actions. "This had to happen anyway," he said.

It's possible that, ultimately, the Trump administration wouldn't be concerned even if the attack did violate international law.

A December Justice Department memo, which argued that the U.S. president was permitted to order a U.S. invasion of Venezuela to capture its president, stated that international law, including the U.N. Charter, "does not restrict the President as a matter of domestic law."

Hegseth dismissed international law on how to engage in military attacks during a March 2 press conference.

"Unlike so many of our traditional allies, who wring their hands and clutch their pearls, hemming and hawing about the use of force, America – regardless of what so-called international institutions say – is unleashing the most lethal and precise air power campaign in history," Hegseth said.

"No stupid rules of engagement," he added.

The Pentagon didn't respond to USA TODAY's request for comment on whether Hegseth's comments are in line with U.S. and international law, and whether the department believes rules of engagement apply to U.S. military actions in Iran.

Courts unlikely to rein Trump in

U.S. courts have repeatedly avoided weighing in on disputes over whether the president has used military force without proper authorization, according to legal experts.

Vladeck of Georgetown, for instance, has written that, from the end of the Vietnam War, courts facing lawsuits over whether a president usurped Congress' authority through overseas military operations have consistently avoided answering the question, instead dismissing cases on the grounds that the plaintiff didn't have a right to sue or to avoid improper judicial intervention in the political process.

"It's not the courts saying that that this is an appropriate use of executive power, but that, 'We, the judiciary, are not the place to go in order to put limits on this use of executive power,'" Mitchell Epner, a former federal prosecutor, told USA TODAY.

Congress could contain the president, but only if Republicans defect or lose control

Congress has its own potential checks on the president, but congressional Republicans are overwhelmingly backing Trump's attacks on Iran. The Senate voted 53-47 against the a war powers resolution to stop the assault, and it will likely meet the same fate in the House of Representatives, Johnson said during a Capitol Hill press conference March 2.

"The idea that we would take the ability of our commander in chief, the president, take his authority away right now to finish this job is a frightening prospect to me," he said.

Congress could also restrain the president by refusing to appropriate money for further military actions, but that too would require congressional Republicans to defect from the president.

"In the absence of the Republican Party breaking with Donald Trump, there is no way for Congress to rein in Donald Trump, and that is why people frequently say elections have consequences," Epner said.

It's possible Democrats could take control of Congress following the midterms in November and then attempt to check Trump's military actions down the line.

"When they try and get a defense budget, they're going to be a lot of questions asked, and it may be very difficult if the Democrats get control of the House to get an even larger defense [budget]," Painter said.