Amicus With Dahlia Lithwick | Law, Justice, and the Courts
Episode: Preview: This War is Obscenely Illegal
Date: March 2, 2026
Host: Mark Joseph Stern (Slate)
Guest: Eugene (Gene) Fidell, Visiting Lecturer and Senior Research Scholar at Yale Law School

Overview

This emergency episode of Amicus addresses the legality—under U.S. and international law—of the new war initiated by President Donald Trump against Iran, in conjunction with Israel. Host Mark Joseph Stern consults with expert Gene Fidell to analyze the constitutional, statutory, and international law constraints that (should) bind presidential war-making powers. The conversation explores how and why these constraints are being stretched or ignored, and whether Americans’ belief in the lawfulness of war matters for democracy.

Key Discussion Points & Insights

1. Context: The Outbreak of War

• [00:09–02:12]
  • President Trump, contrary to his previous “no new wars” position, has initiated a military campaign against Iran with Israel (“Operation Epic Fury”).
  • Goals include regime change, exemplified by Israel’s killing of Iran’s supreme leader.
  • Significant casualties:
    • 4 American service members killed (as of recording), with Trump stating, “there will be, quote, likely more American deaths to come.”
    • 555 killed in Iran (Iranian Red Crescent), 11 in Israel.
  • The legality of this military action is in serious question.

Notable Quote:

• “There may be a temptation to say that the is-it-even-legal question doesn’t matter, which is what Harvard law professor Jack Goldsmith declared ... ‘law is irrelevant to the US Attack on Iran.’ Maybe so, but my guest today does not agree...”
  —Mark Joseph Stern [01:30]

2. Constitutional Constraints on War Powers

• [02:13–04:03]
  • Mark Joseph Stern opens by asking about the legal structures—the “sandwich” of restrictions: Constitution, federal statutes, international law.
  • Fidell: Only Congress has the constitutional authority to declare war (Article I, Section 8).
    • Last formal declaration: after Pearl Harbor (WWII).
    • Recent history: Congress has sometimes issued Authorizations for Use of Military Force (AUMFs), but most post-WWII conflicts were not formally “declared.”
    • Administration (both parties) has often rebranded military actions as “not war” to evade constitutional hurdles.

Notable Quotes:

• “The answer, of course, is no. The Article 1, Section 8 of the Constitution has always provided that the power to declare war is vested in Congress.”
  —Gene Fidell [03:06]
• “We’ve also had a lot of attacks that the government... have claimed were not war in the constitutional sense because they were extremely short-lived, extremely limited, low horsepower, low firepower operations. You could debate some, if not all of those...”
  —Gene Fidell [03:31]
• “And, by the way, not the Gang of Eight, not the leadership, the Congress as a whole.”
  —Gene Fidell [03:55]

3. Presidential Rationales for Unilateral Action

• [04:03–05:40]
  • Trump’s administration has justified attacks on various grounds:
    • Regime change
    • Protecting human rights (e.g., “prevent further depredations” by Iran)
    • Retaliation for past or expected provocations or “anticipated attacks”
  • Fidell: These rationales shift frequently and are used to justify bypassing Congressional authorization.

Notable Quotes:

• “There’s a constant flow of rationales. And when one is knocked down, something else comes in to take its place.”
  —Gene Fidell [04:50]
• “You know, quite what his [Trump’s] position is depends on which side of the bed he gets up on. It’s very hard to pin him down. He’s intentionally vague, which I guess is part of his M.O. But this is not a situation where you can be intentionally vague. We’re talking about life and death matters.”
  —Gene Fidell [05:08]

4. Statutory Constraints and the Congressional Role

• [05:40–07:17]
  • Congress has passed several AUMFs previously (notably after 9/11), broadly interpreted over time.
  • Critical Point: No Congressional authorization for military action against Iran exists.
  • Fidell: Only imminent or actual attacks on the U.S. justify unilateral presidential military action without Congressional approval.
  • Decision-making must rest with “an honest to goodness act of Congress ... passed by the majority in both houses,” not informal consultations with a handful of congressional leaders.

Notable Quotes:

• “The only circumstances in which, in my understanding, the President can act without a congressional authorization in advance is if there is ... an actual or imminent threat of an attack on the United States.”
  —Gene Fidell [06:38]
• “What has happened is this country has drifted too far from the constitutional shore, in my opinion.”
  —Gene Fidell [06:17]

Notable Quotes & Memorable Moments

• On Vague Presidential Justifications:
  “He is intentionally vague, which I guess is part of his M.O. but this is not a situation where you can be intentionally vague. We’re talking about life and death matters. We’re talking about whether the United States is going to be a pariah for the rest of history...”
  —Gene Fidell [05:08]

• On Constitutional Drift:
  “What has happened is this country has drifted too far from the constitutional shore, in my opinion. The Constitution is very clear as to who makes the decision. It’s Congress.”
  —Gene Fidell [06:17]

Important Timestamps

• 00:09–02:12 — Introduction and the factual context of the new war with Iran
• 03:06–04:03 — Constitutional authority to declare war
• 04:12–04:55 — Rationales for presidential unilateral military action
• 05:40–07:17 — Statutory limits and the lack of Congressional authorization

Tone & Language

• The conversation is sobering, urgent, and steeped in legal precision, underscored by a sense of constitutional alarm.
• Both host and guest speak bluntly about executive overreach and the erosion of legal norms: the tone is critical, fact-oriented, and slightly incredulous at the current state of war powers.

Summary

This special episode cuts through the political fog to interrogate the legality of President Trump’s war with Iran. Through expert commentary, the show exposes the disconnect between constitutional mandates and actual presidential action, stressing that despite decades of precedent-bending, the law—including the requirement for Congressional authorization—still fundamentally matters. Fidell’s analysis offers a clarion call for a return to constitutional order in the gravest of national decisions: the choice to go to war.