Everything you wanted to know about the constitutionality of Trump's killing Suleimani but were afraid to ask (questions, Todd Berman, answers, Michael Kochin)
Q1. Was the POTUSs ordering the strike on a foreign general unconstitutional or within his legal rights as Commander in chief? Why?
A1. It was constitutional and authorized under previous legislation, as well as within the President's constitutional duty to protect American personnel stationed with congressional approval abroad.
Q2. If it was a violation, can he be held legally responsible perhaps impeached a second time and tried in the senate? If not, why not?
A2. He can be impeached for it even though it was not a violation of the Constitution or the law, just as he was impeached for investigating corruption of Democratic officials and Ukrainian meddling in the 2016 election, which no-one questions are within his constitutional and statutory authority.
Q3. If the order was unconstitutional, should someone along the chain of command have refused the order? If not, why not? If so can someone in that chain be held legally responsible for violating the constitution or carrying through with an illegal order? Why or why not?
A3. Not relevant because the actions were constitutional and lawful.
Q4. If it was constitutional, then is either the Sanders and Khanna bill or the Omar bill restricting funding for attacks against Iran w/o congressional approval in violation of separation of powers according to the constitution? Would the SCOTUS overturn such a law?
A4. Yes, such actions could be prevented by legal change, but such legal change would probably have to include Congress passing a law prohibiting any official US presence in Iraq or disarming the US of any ability to protect such an embassy. Congress cannot authorize a US embassy in Iraq and then deny the President the right (though they could deny the means) to protect such an embassy. I think that Congress is unlikely, however, to withdraw the embassy or defund the Navy and Air Force. The courts will not intervene in any dispute directly between the President and Congress of this kind.
Q5. If restricting the President's hand is legal, is such a law even necessary? Would it be more effective than the Constitution itself?
A5. Laws would be necessary because the US Embassy is in Iraq by congressional action and it would require congressional action to force the President to withdraw it.
N.B. (MSK) Because the President has acted under direct or implied Congressional authorization, the War Powers Act, which every President since it was passed has regarded as unconstitutional, is not relevant.
