Realistically, there is very little possibility of avoiding a war with Iran. The President and Vice-President have almost certainly made up their minds, and they have shown themselves impervious to public pressure and rational arguments. Protests will not work and neither will any number of letters to the editor of local papers.
The President is Commander-in-Chief of the U.S. armed forces and as such his lawful orders to the military must be obeyed. Under the War Powers Act (1973) the President has the authority to order American forces into combat, as long as he reports his actions to Congress in a timely fashion. Congress may then, by concurrent resolution order an end to combat operations. This so-called legislative veto is of dubious constitutionality (see INS v. Chadha, 1982), but regardless is unlikely to be meaningful given that an airstrike on Iran could easily be initiated and completed within the accepted reporting window.
The refusal of the military to obey a lawful order would be an unacceptable situation that comes perilously close to a military coup. Since the President is committed to war, and since we cannot wish for (or expect) the military to disobey a lawful order, we must find a way to influence the other part of the legal chain, namely the President's legal authority to initiate hostilities absent a specific Congressional authorization.
There are two possible approaches. The first would be to request an injunction against a military strike from the judicial branch. This is simply unrealistic. It would be virtually impossible for Congress to establish standing to bring such a suit given that prior to an actual attack the dispute would be in the realm of hypothetical, and any case would likely be dismissed under the political questions doctrine if somehow the standing and justiciability issues could be resolved. If the Supreme Court were to take the case, it would, given the current composition of the Court be unlikely to side with Congress in any case.
The second approach, and the only realistic way to avoid a military strike on Iran, is to provide the military with a situation where the President's order to attack Iran is unambiguously unlawful. Lacking the ability to pass such a bill over the President's veto, the only realistic way to make an attack on Iran clearly unlawful will be to attach such a provision to a bill the President will be forced to sign, such as appropriations bills. Once next year's money has been appropriated, it will likely be literally impossible to do anything to stop the President from launching another war.
The problem, however is two-fold. First, the President would almost certainly prefer to allow the government to shut-down rather than sign a provision that thus limited his freedom of action. Politically, it would be tremendously risky for Democrats to take such a strong stance. Absent a clear sign of compromise from Teheran, shutting down the government to prevent a strike on Iran might be quite hard to defend to the public which remains more motivated by fear than reason. Second, the President's lawyers would argue that any such provision, even if passed, was a violation of his Constitutional prerogatives and hence not binding. This might restore ambiguity to legality of the President's order thus providing the military with a cover for following an order from the Commander-in-Chief.
In short, I see no good options for opponents of war with Iran. Do you?
Bernard Finel
www.bernardfinel.com