The Gavel: Was Trump’s Iran strike legal?

The Hill's weekly courts news digest.

By Ella Lee and Zach Schonfeld   |   Wednesday, June 25 By Zach Schonfeld and Ella Lee Wednesday, June 25 © AP Photo/David Smith Was Trump's Iran strike legal? President Trump's bombing of three Iranian nuclear sites has come under legal scrutiny, as some suggest his decision to bypass Congress stepped on its power to declare war.  But if history is any indication, it's unlikely the courts will have an avenue to settle the question — or that politics won't prevail, as presidents from both parties in the modern era have carried out military strikes across the globe without seeking congressional approval.  When an Army captain deployed to Kuwait sued President Obama for launching a military campaign against ISIS, a judge found the captain had no right to sue and that his claims raised political questions beyond the reach of the courts.  "The Court is not well-equipped to resolve these questions, and the political branches who are so-equipped do not appear to be in dispute as to their answers," U.S. District Judge Colleen Kollar-Kotelly wrote in her 2016 ruling.  With no sign of any lawsuits against Trump's strikes, any legal challenge again appears to rest with Congress — or fought in the political arena.  Many Democrats have voiced support for passing a war powers resolution that seeks to block Trump from taking additional military action against Iran without explicit congressional authorization.   In the Senate, Sen. Tim Kaine (D-Va.) is spearheading the effort. Senate Minority Leader Chuck Schumer (D-N.Y.) has voiced support and called for it to be put on the floor for a vote immediately.  And while most Republicans are standing behind Trump, a few anti-interventionist conservatives on Capitol Hill are joining with Democrats.  Rep. Thomas Massie (R-Ky.), one of the most vocal Republicans opposing the strikes, is a co-sponsor of the House version of a war powers resolution alongside Rep. Ro Khanna (D-Calif.)  "This is not Constitutional," Massie wrote on X, quoting Trump's Truth Social post announcing the strikes.   The Constitution grants Congress the power to "declare" war while the president is vested with authority as commander-in-chief.   Defending the strikes, Trump and administration officials have cast it as a limited, targeted operation that does not require Congressional approval. The president has also signaled a readiness to de-escalate after the Iranians retaliated with strikes in Qatar on Monday.  Defense Secretary Pete Hegseth insisted the administration complied with statutory requirements to notify congressional leaders — a liberty that's been taken by presidents of both parties as a way to bypass House and Senate approval.  Obama sought no permission to bomb Libya alongside the North Atlantic Treaty Organization (NATO), and neither did former President Bill Clinton when he intervened in the Kosovo conflict by authorizing strikes against Serbian forces. Trump is no stranger to it either, ordering strikes in Syria in 2017 during his first term without first asking Congress.  Without seeking Congress's approval, former President George H.W. Bush invaded Panama, former President Ronald Reagan deployed U.S. forces to Lebanon (though Congress later signed off) and former President Harry Truman sent troops into Korea.  Even President James Polk — the nation's 11th president — sent the military to occupy the newly annexed state of Texas without Congress's initial backing. The move was seen as a declaration of war with Mexico, which Congress later formalized with an official declaration. The House went on to censure Polk over the conflict, suggesting he "unnecessarily and unconstitutionally" started it.   Many legal experts believe that Trump stepped on Congress's turf by authorizing the strikes.   Michael Ramsey, a conservative and originalist legal scholar, suggested that Trump's strikes constitute war "in the original constitutional sense of the term."  "Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war)," Ramsey wrote.   "And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress' approval under the Constitution's declare war clause."  A few Democrats have gone further. Rep. Alexandria Ocasio-Cortez (D-N.Y.) called for Trump's impeachment. Trump responded with a lengthy Truth Social post Tuesday calling her "one of the 'dumbest' people in Congress."  At the end of the day, Trump has the benefit of Republicans controlling both chambers of Congress — and to take him to task, Democrats would need their help. But top Republican leaders are so far standing behind him.    Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).   Not already on the list? Subscribe here. IN FOCUS Jan. 6 plaque; Abrego Garcia; court limits struck from big, beautiful bill Jan. 6 rioters mount bid to join Capitol plaque suit  Two pardoned Jan. 6 defendants are mounting a bid to participate in a lawsuit aimed at compelling the installation of a plaque honoring law enforcement who defended the Capitol and those inside during the 2021 riot.   The lawsuit was filed earlier this month by two police officers who fought off rioters that day, contending that a 2022 law directed the Architect of the Capitol to install the memorial, but it hasn't been.   Now, Brian Mock and Cindy Lou Young — Jan. 6 rioters who were convicted in connection with the attack but pardoned by President Trump — say the judge should let them intervene to say their piece.   "The Intervenor — and others similarly situated — assert a vested interest in the content and symbolism of any such government-sanctioned monument, especially when that monument presents a false and one-sided narrative of the events of that day," Mock wrote in his motion to intervene.   Mock, who was convicted of six felonies and sentenced to nearly three years in prison, argued that he has legal standing and a "direct, personal stake in ensuring the accurate historical representation of that day."  He suggested in court filings that any memorial should include the names of rioters who died that day, including Ashli Babbitt, who was fatally shot by police while attempting to climb through the broken window of a barricaded door. It should also honor the rioters who were "politically persecuted," he said.   In a separate motion, Young suggested any memorialization of the riot must "fairly represent all affected parties to avoid perpetuating a one-sided narrative." She was convicted on four misdemeanor counts and sentenced to four months incarceration but did not serve that time because she was pardoned before she reported to prison.  Both rioters, who are representing themselves, suggested that installing a plaque reflecting only the officers' "narrative" would damage their reputations and skew the Capitol attack's legacy.   U.S. District Judge Dabney Friedrich, an appointee of former President Trump who is overseeing the case, has not yet weighed in on the matter. The officers who filed the lawsuit, former U.S. Capitol Police Officer Harry Dunn and D.C. Metropolitan Police Officer Daniel Hodges, have also remained mum.  But if the former Jan. 6 defendants are allowed to join the suit, it could set up a legal battle over how the riot is memorialized — and how history remembers it.  Abrego Garcia back in court  Kilmar Abrego Garcia will be back in a Nashville courtroom Wednesday afternoon as the Trump administration fights a judge's determination that he cannot be detained on his criminal charges ahead of trial.  As U.S. Magistrate Judge Barbara Holmes put it, the battle is "little more than an academic exercise." If Abrego Garcia can't be detained on his human smuggling charges, immigration authorities are set to take custody of him.  But the Trump administration is still fighting tooth and nail as Holmes prepares to file a release order for Abrego Garcia following Wednesday's hearing, when she will go over any conditions.   On Sunday, Holmes ruled the government couldn't justify detaining the man, who was mistakenly deported to El Salvador in March and returned earlier this month to face the new indictment.  Prosecutors asserted they can apply a statutory provision that allows pre-trial detention when someone is charged with a felony that involves a minor victim. Abrego Garcia drove his children and other minors when he was smuggling people living in the country illegally on dozens of trips, prosecutors say.  Still, Holmes's 51-page decision raised skepticism of some of the government's evidence.  "Even without discounting the weight of the testimony of the first and second male cooperators for the multiple layers of hearsay, their testimony and statements defy common sense," Holmes wrote.  Now, the Trump administration is starting to move up the chain by asking U.S. District Judge Waverly Crenshaw, an appointee of former President Obama who will ultimately oversee the trial, to block the magistrate judge.  "Defendant could face potential deportation from the United States in the near future should Judge Holmes' impending release order remain in effect," the Justice Department warned in a Sunday court filing.  Abrego Garcia's lawyers called it a "knee-jerk" request and insisted the government must wait for Holmes to decide the release conditions.   "The government appears to take the position that if it disputes the Court's view of the evidence, then it is entitled to a stay. But the Bail Reform Act contains no automatic stay provision," Abrego Garcia's lawyers wrote in court filings Monday.  GOP effort to limit courts struck from 'big, beautiful bill'  Loyal readers, you may recall from a Gavel edition last month that buried deep in the budget reconciliation bill making its way through Congress — aka, the One Big Beautiful Bill Act — was a provision that could hinder federal judges' ability to enforce their rulings blocking Trump's policies.   Well, not anymore.   Earlier this week, Senate Parliamentarian Elizabeth MacDonough ruled against the controversial provision in the bill, our colleague Alexander Bolton reported, after finding it violated the upper chamber's rules that govern what can or can't be passed with a simple-majority vote.   The provision would have barred federal courts from using appropriated funds to enforce contempt citations for failing to comply with an injunction or temporary restraining order if a bond was not paid when injunction or order was issued.   As we explained last month, that could have been a big deal.   Judges typically waive the bond requirement when a plaintiff alleges a constitutional violation by the U.S. government, and many judges have already done so in challenges to Trump's second term agenda.   If the provision had remained in Senate Republicans' megabill, any injunctions or temporary restraining orders issued against the Trump administration where the security requirement was waived would have been neutered, since judges could not enforce contempt rulings if the orders were violated.   The wonky demise of Republicans' bid to rein in federal judges marks a setback to one facet of Trump's efforts to broaden executive power.   SIDEBAR 5 top docket updates Lifted third country deportation limits: The Supreme Court on Monday lifted judge-imposed limits on the Trump administration's efforts to deport migrants to countries where they have no ties, earning a scathing dissent from the court's liberal justices.   Ten Commandments law invalidated: On Friday, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit ruled that a Louisiana law requiring all public-school classrooms to post the Ten Commandments is unconstitutional.   Khalil released: Also Friday, a federal judge ordered the release of Mahmoud Khalil, a green card holder and former pro-Palestinian activist at Columbia University who was detained for several months. He was let out of detention later that evening and vowed to continue advocating for the cause.   National Guard stays deployed: On Thursday, a three-judge panel on the U.S. Court of Appeals for the Ninth Circuit allowed Trump to keep the National Guard deployed in Los Angeles, for now.  Trump on the hook for Carroll verdict: And Wednesday, a three-judge panel on the U.S. Court of Appeals for the Second Circuit refused DOJ's effort to make itself responsible for the $83.3 million defamation award writer E. Jean Carroll won against Trump.   In other news A sticky situation: A lawyer accidentally called a Colorado appeals court judge "honey" instead of "your honor" while arguing his case — and there's video. We can't stop cringing.  Not backing Bove: Two former Justice Department officials aligned with Justice Connection, a support group for current DOJ employees created by one who left amid Trump's return to the White House, are speaking out against the nomination of Emil Bove — principal associate deputy attorney general and Trump's former personal defense attorney — to the U.S. Court of Appeals for the Third Circuit.  DECISION ROUNDUP The court has 10 opinions in argued cases left this term.  Terror victims can sue Palestinian groups  The Supreme Court unanimously upheld a law letting Americans injured by acts of terror in the Middle East take Palestinian leadership groups to U.S. courts for damages.   The justices ruled that the Palestinian Authority and Palestine Liberation Organization's due process rights are not violated by the Promoting Security and Justice for Victims of Terrorism Act, which forces them to consent to federal courts' authority.  "It is permissible for the Federal Government to craft a narrow jurisdictional provision that ensures, as part of a broader foreign policy agenda, that Americans injured or killed by acts of terror have an adequate forum in which to vindicate their right to [Anti-Terrorism Act] compensation," Chief Justice John Roberts wrote for the court.    Read more about the decision.  Lawsuit over California clean car standards revived  The justices revived an industry effort to axe California's stricter vehicle emissions standards in a 7-2 decision.   The justices found that fuel producers have legal standing to mount a legal challenge against the state's clean car standards, which are approved by the Environmental Protection Agency (EPA). But the ruling only concerns standing, not the merits.   "EPA and California may or may not prevail on the merits in defending EPA's approval of the California regulations," Justice Brett Kavanaugh wrote in the majority opinion. "But the justiciability of the fuel producers' challenge to EPA's approval of the California regulations is evident."  Justices Sonia Sotomayor and Ketanji Brown Jackson dissented.   Read more about the decision.  FDA venue challenge in vape case rejected  The court rejected the Food and Drug Administration (FDA)'s bid to limit where companies can challenge product marketing denials in a victory for the vaping industry.   The 7-2 decision lets R.J. Reynolds Vapor Company's lawsuit seeking to market its "Vuse Alto" flavored e-cigarette products proceed in the U.S. Court of Appeals for the Fifth Circuit, regarded as the nation's most conservative appeals court, by suing alongside retailers.  "Because Avail Vapor and the trade association have their principal places of business in Texas and Mississippi, respectively, they could both file in the Fifth Circuit," Justice Amy Coney Barrett wrote for the majority.   Sotomayor and Jackson dissented here as well.   Read more about the decision.   THE ORDER LIST Cases the Supreme Court is taking up — or passing on — this term. Read Monday's order list here.  In: Religious liberty claim Last week, we noted the justices were likely to take up Landor v. Louisiana Department of Corrections and Public Safety.  Well, they did.  The justices will weigh whether Damon Landor can seek damages after prison officials forcibly shaved his dreadlocks in violation of his Rastafari beliefs, despite Landor having a court opinion in hand showing it was protected. Landor is backed by the Trump administration.  In 2020, the Supreme Court unanimously ruled the Religious Freedom Restoration Act (RFRA) allowed individuals to seek damages from government officials in their individual capacities for violating their religious liberty rights.  Now, the court will decide whether the same is true for the Religious Land Use and Institutionalized Persons Act (RLUIPA), RFRA's sister statute that focuses on religious rights for incarcerated people.  Out: Tesla's fight with Louisiana The Supreme Court turned away petitions from both Louisiana and Virginia's Republican attorneys general seeking to end lawsuits their states face.  In Lala v. Tesla, Louisiana sought to fend off a lawsuit brought by Elon Musk's Tesla against the state's Motor Vehicle Commission.    The case stems from a Louisiana law that generally bars a manufacturer from directly selling their cars to consumers, as Tesla does.    Tesla sued after the commission investigated the company over its car leasing and warranty repairs in the state.  Louisiana asked the Supreme Court to instruct a lower appeals court to take another look at its ruling reviving Tesla's claims that the commission's structure presented a due process issue.  Meanwhile, the Supreme Court on Monday declined a petition from Virginia that sought to end a lawsuit challenging the state's lifetime felony voting ban.  Two disenfranchised voters claim the ban violates the Virginia Readmission Act, a federal law that set conditions for Virginia to regain congressional representation following the Civil War.  In O'Bannon v. King, Virginia asked the Supreme Court to take up its appeal that the courts have no authority to enforce the Readmission Act and the state has immunity under the 11th Amendment.   But with no noted dissents, the court turned away the appeal. The case is expected to head to trial in October.  Maybe: Skinny labels In Hikma Pharmaceuticals USA Inc v. Amarin Pharma, Inc, the justices asked for the Trump administration's views on a legal battle involving "skinny labels," which allow drugmakers to sell generic versions of a drug by carving out the brand-name drug's patented uses.  Amarin, the manufacturer of the brand-name drug Vascepa, which is patented for reducing cardiovascular risk, is suing Hikma over its generic version.  Hikma's "skinny label" advises that its product is used to treat severe hypertriglyceridemia. But Amarin says Hikma's public statements and other aspects of its label illegally induced others to infringe on Amarin's patent.  A district judge dismissed Amarin's lawsuit for failing to state a claim, but the U.S. Court of Appeals for the Federal Circuit revived the case. Now, Hikma is asking the Supreme Court to review it.  The justices indicated Monday they won't decide until next term whether to do so. First, they first want the administration's views.   In these situations, the court tends to go with whatever the government recommends — just as they did with Landor's religious liberty case.  PETITION PILE Petitions to take up cases that the justices are keeping a close eye on. Campaign finance: In National Republican Senatorial Committee v. Federal Elections Commission, Vice President Vance, former Rep. Steve Chabot (R-Ohio), the National Republican Senatorial Committee and the National Republican Congressional Committee are asking the court to strike down limits on political parties' spending made in coordination with campaigns. Vance, who filed the lawsuit as a senator, argues the limits violate the First Amendment. The Trump-era Justice Department no longer defends the limits.   Asylum x2: In Urias-Orellana v. Bondi and Maldonado-Magno v. Bondi, two migrants claiming they will face persecution if deported to El Salvador and Peru, respectively, are appealing rulings finding them ineligible for asylum. The Justice Department says the rulings were correct. But it wants the Supreme Court to take up Urias-Orellana to resolve a split among the lower courts on the appropriate legal standard.  Direct democracy: In Oregon v. Committee to Recall Dan Holladay, Oregon Attorney General Dan Rayfield (D) is asking the court to take up a fight over the state's 90-day limit to gather signatures for a recall campaign. Rayfield's office says the case is a suitable vehicle for the Supreme Court to resolve if neutral requirements on direct democracy measures implicate the First Amendment.  Michigan pipeline fight: Enbridge Energy, which owns the Line 5 pipeline that supplies energy to millions in the Midwest and Canada, is fighting to move Michigan Attorney General Dana Nessel's (D) lawsuit to federal court. Nessel is suing over claims the company's operation violates three state laws. Enbridge tried to move courts more than two years after Nessel initially filed the suit, but federal law requires a civil case be removed within 30 days. A district court ruled it had authority to excuse the deadline. An appeals court reversed, and the company is now seeking the Supreme Court's review. The case is Enbridge Energy v. Nessel.  ON THE DOCKET Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now:    Today Emil Bove, a top DOJ official and Trump's former defense attorney, will on Wednesday appear before the Senate Judiciary Committee for a hearing regarding his nomination to the U.S. Court of Appeals for the Third Circuit.   Thursday The Supreme Court will announce opinions.   Retired Justice Anthony Kennedy is set to speak on the "foundational importance of an independent judiciary and the urgent need to protect it" at a Speak Up for Justice forum.   A federal judge in Washington, D.C., is set to hold a motions hearing in a challenge to the Trump administration's termination of DOJ Office of Justice Program grants.   Friday A federal judge in Washington, D.C. is set to hold a motions hearing in longtime national security lawyer Mark Zaid's challenge to the Trump administration's decision to strip his security clearance.  Monday A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in the Corporation for Public Broadcasting's lawsuit against FEMA for holding grant funding tied to the nation's emergency alert system.   A panel of judges on the U.S. Court of Appeals for the Fifth Circuit are set to hear oral arguments in an appeal by the American Civil Liberties Union in a lawsuit challenging Trump's invocation of the Alien Enemies Act on behalf of two Venezuelan nationals.   WHAT WE'RE READING The New York Times's Nicholas Confessore: How the Transgender Rights Movement Bet on the Supreme Court and Lost  Politico's Hailey Fuchs: A judge sided with Trump. Behind the scenes, he was lobbying for a nomination.  The New Yorker's Lawrence Wright: The Nuns Trying to Save the Women on Texas's Death Row  Crunchbase's Aron Solomon: AI Isn't Just Delivering The News — It's About To Deliver Your Lawyer, Too  Richard Re's "Divided Argument": To begin, To start, — Please End! On a SCOTUS Writing Tic Whose Time Has Come  We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. Questions? Tips? Love letters, hate mail, pet pics? Email us: elee@thehill.com and zschonfeld@thehill.com.  On Signal: @elee.03 and @zachschonfeld.48.  Privacy Policy   |   View in Browser    |   Manage Subscriptions Sign Up for Other Newsletters   |   Unsubscribe  400 N Capitol Street NW Suite 650, Washington, DC 20001 Copyright © 1998 - 2025 Nexstar Media Inc.   |   All Rights Reserved.

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