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By Gene Healy

Without
Congress’s approval, he has no legal authority to start a war, no matter what
John Bolton seems to think

We’re told
that the Trump administration’s brinkmanship on Iran stems from a power grab by
President Donald Trump’s undeterrable national security advisor, John Bolton.
And it’s true that Bolton has never met a “preventive” war he didn’t like and
that there’s every reason to suspect him of scheming to create an excuse for
one.

But lately
it’s getting hard to distinguish President Trump from “President Bolton.” “If
Iran wants to fight, that will be the official end of Iran,” Trump rage-tweeted
Sunday. “Never threaten the United States again!” If the administration can’t
be convinced to stand down, the House of Representatives should launch a
preemptive strike of its own. They should credibly threaten to impeach the
president if he goes to war without congressional authorization.

Waging war
without legal authority is an impeachable offense, if anything is. Impeachment
was designed to thwart attempts to subvert the Constitution; congressional
control of the war power was one of that document’s core guarantees. “In no
part of the constitution is more wisdom to be found,” James Madison affirmed,
“than in the clause which confides the question of war or peace to the
legislature, and not to the executive department.”

The first
federal impeachment case, brought less than a decade after the Constitution’s
ratification, centered on charges of unauthorized warmaking. In 1797, the House
impeached Tennessee Senator William Blount for conspiring to raise a private
army for “a military hostile expedition” against Spanish-held Louisiana and
Florida, “in violation of the obligations of neutrality, and against the laws
of the United States.” In the Founding era, usurpation of the war power was
considered serious enough to merit the ultimate constitutional remedy.

No
president has yet been impeached for illegal warmaking, but Richard Nixon came
closest. In 1974, the House Judiciary Committee debated impeaching Nixon for
conducting a secret bombing campaign in Cambodia “in derogation of the power of
the Congress to declare war.”

The article
never made it into the final charges, possibly scuttled by Democratic
leadership out of fear of revealing “that a few prominent members of their
party had known about the secret bombing at the time.” As Congressman William
Hungate put it afterwards: “It’s kind of hard to live with yourself when you
impeach a guy for tapping telephones and not for making war without
authorization.”

Current
members of Congress should find it hard to live with themselves if they don’t
do something to prevent the Trump administration from dragging us into an
illegal and unnecessary war. Yet so far the congressional response has been
limited to ineffectual grousing and the introduction of a few bills that are
wholly inadequate to the task at hand.

Instead the
House should consider passing a resolution “expressing the sense of the House
of Representatives that the use of offensive military force against Iran
without prior and clear authorization of an Act of Congress constitutes an
impeachable high crime and misdemeanor under article II, section 4 of the
Constitution.” The late, great Congressman Walter Jones, long one of the most
jealous guardians of Congress’s power “to declare War,” proposed a similar
measure during President Obama’s second term, when the administration was publicly
contemplating airstrikes on Syria.

Jones
introduced a concurrent resolution stating that “except in response to an
actual or imminent attack against the territory of the United States, the use
of offensive military force by a President without prior and clear
authorization of an Act of Congress” is an impeachable offense.

The Jones
resolution only secured a handful of cosponsors and proved unnecessary in any
event, when President Obama decided to seek congressional authorization for
airstrikes, then abandoned the effort entirely. The stakes are far higher now.

The current
House leadership is notably gun-shy about impeachment. But over the last two
years, House Democrats have threatened to impeach Trump for much less. In the
previous Congress, for example, Congressman Steve Cohen introduced articles
charging Trump with, among other things, overspending on golf cart rentals at
Mar-a-Lago. In January 2018, Congressman Al Green got 66 Democratic votes to
move forward on a resolution to impeach Trump for “attempting to convert his
bigoted statements into United States policy” in the form of the travel ban and
the ban on transgender troops.

Surely,
more Democratsand even a few Republicans, like Congressman Justin Amashcould
rouse themselves to threaten impeachment to avoid a disastrous war in violation
of a core constitutional guarantee.

Other
options on the table. H.R. 2354, barring funds for military action against Iran
absent congressional authorization, canand wouldbe vetoed by the president. A
sense of the House resolution could not. It wouldn’t have the force of law, but
it would be more than mere symbolism: a shot across the administration’s bow
and fair warning to the president. Moreover, a resolution publicly declaring
war with Iran an impeachable offense could serve as a precommitment device for
the House, a public pledge to take action should he cross that line.

Only two
presidents have ever been impeached by the House, yet others still fear joining
their ranks. Trump has claimed he’s “not even a little bit” worried about the
prospect, but insider accounts and his public Twitter feed tell a different
story. Earlier this week, he blew up at Representative Amash for opining that
he’d engaged in impeachable conduct: “Justin is a loser who sadly plays right into
our opponent’s hands!”

Impeachment’s
purpose isn’t primarily to punish abuses after the factthat would be cold
comfort herebut to prevent damage from being done in the first place. “It will
not be the only means of punishing misconduct, but it will prevent misconduct,”
future Supreme Court justice James Iredell remarked during the ratification
debates in 1788. “Although he may be a man of no principle, the very terror of
punishment will perhaps deter him.” But in law as in war, deterrence sometimes
requires a credible threat.

Gene Healy
is a vice president at the Cato Institute and author of Indispensable Remedy:
The Broad Scope of the Constitution’s Impeachment Power.