Of yesterday’s attack in Iran, Nancy Pelosi says:

I wish that Pelosi wouldn’t do this. I, too, am of the view that President Trump needed congressional authorization for this strike. (For those interested, I wrote about it here, and debated Andy McCarthy on the topic here.) But my quarrel is not with Trump; it is with the entire post-WWII collection of precedents. In essence, my argument is, a) that, per the terms of the Constitution — and the way in which they were understood at the time of the Founding — Congress must authorize changes in military policy; b) that Congress granted such authorizations as a matter of routine until 1950 (see: the First Barbary War, the War of 1812, the Second Barbary War, the Mexican-American War, the Spanish-American War, World War I, and World War II); and c) that, while it is now 75 years old, the alternative arrangement that has obtained since then is illegal. My argument is not that President Trump has done something that no other recent president has done, or that he is a dictator, or that he ought to be impeached.

As Nancy Pelosi knows well, many other Democrats have taken action that was equivalent to Trump’s attack on Iran without asking Congress for permission. Barack Obama did it in Libya (and tried to do it in Syria, until he backed down — sort of); President Clinton did it in Kosovo; President Kennedy did it in Vietnam; and Harry Truman did it in Korea. Did Nancy Pelosi condemn them? Of course not. In 2011, the Washington Post reports, Nancy Pelosi became “one of the few to publicly defend” Obama’s incursions into Libya, when she contended that “the limited nature of this engagement allows the president to go forward” without Congress. When asked explicitly by reporters if she was saying that Obama did not need authorization from Congress either for the initial attack or for the ongoing operations, Pelosi said,  simply, “yes.” Two years later, in the course of arguing that Barack Obama could strike Syria without Congress if he wanted to, Pelosi not only said “I don’t think that the congressional authorization is necessary,” but took the opportunity to defend President Clinton’s unilateral actions in Kosovo in 1999!

Today, Pelosi complains that President Trump “ignored the Constitution by unilaterally engaging our military without Congressional authorization.” Come now. If Pelosi actually believed this, she would say the same thing irrespective of who happened to be president at the time. (For anyone keeping score, here’s me doing just that in 2019, 2014, 2013.) Instead, she is expressing one of the core progressive views of government, which is that the executive branch must not be limited in its power, but that Republicans ought not to use that power if they are fortunate enough to win an election. This will not do — and, moreover, it is not helpful to my cause. It cannot be the case that war-making is one of those irregular verbs from Yes, Minister: I may act without congressional authorization; you are ignoring the Constitution; he should be impeached and removed from office. The rules are the rules are the rules. There is nothing about President Trump that exempts him from the system that was used by Presidents Obama, Clinton, and others.

Since I published my piece on this topic, I have heard from several thoughtful people who have contended, in effect, that because 75 years have elapsed since President Truman took us into Korea without a declaration of war (or an AUMF), the arrangement he inaugurated has been “ratified.” I comprehend this case. But I do not agree with it. Perhaps this makes me a Clarence Thomas-style die-hard, but I am of the view that in this instance, as in all others, the Constitution means what it means until it is amended. It is true, I daresay, that there are many rules within our constitutional order that our politicians have ignored or subverted for long periods of time. It is not true that this deems them to have been amended.

Of all people, conservatives ought to grasp this. After all, we have just celebrated the two-year anniversary of the overturning of Roe v. Wade, Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc., and the series of bad cases that had permitted racial discrimination in college admissions, and we are hoping that, next, the Supreme Court will reverse Humphrey’s Executor, a decision that was handed down in 1935. In that last instance, our argument is that, sure, the federal government may have been violating the separation of powers for 90 years, but that, regardless of the longevity of that mistake, the law demands what it demands. I take the same view of the war-making power. Nancy Pelosi, alas, does not.