The U.S. is not currently at war with Iran, though that could apparently change at any moment. Over the weekend, President Donald Trump bombed Iranian nuclear enrichment sites in an attempt to forestall its ability to produce a nuclear weapon. He has insisted ever since that the U.S. is not at war.
Trump did not seek Congress’ approval, violating not just the Constitution but the War Powers Resolution of 1973 (sometimes also called the War Powers Act). One of his allies now says the latter act unnecessarily ties the president’s hand and may even be unconstitutional. But opposing limitations on the president’s power to make war is a bipartisan tradition. And if the War Powers Resolution is unconstitutional, it’s because it gives the president too much power, not too little.
“Many respected constitutional experts argue that the War Powers Act is itself unconstitutional. I’m persuaded by that argument,” House Speaker Mike Johnson (R–La.) said this week. “They think it’s a violation of the Article II powers of the commander in chief. I think that’s right.”
Article I, Section 8, of the U.S. Constitution gives Congress the power to declare war, while Article II, Section 2, names the president “Commander in Chief of the Army and Navy.” In other words, the president is charged with fighting a war, but Congress retains the ability to start and fund it.
But over time, Congress abdicated this role: It last declared war in 1941, and yet American troops have since been deployed in numerous overseas conflicts. Some were preceded by a congressional authorization for the use of military force, but there have been no official declarations of war in more than eight decades.
Amid revelations that during the Vietnam War, President Richard Nixon secretly bombed and invaded Cambodia, Congress passed the War Powers Resolution, “to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities.”
The law requires the president to “consult with Congress before introducing United States Armed Forces into hostilities.” Without a congressional declaration of war or authorization of military force, the president’s ability to act is limited to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
“In the absence of a declaration of war, in any case in which United States Armed Forces are introduced” into a hostile or imminently hostile scenario, the law required the president to notify both houses of Congress “within 48 hours” to explain why he had deployed troops, as well as to “periodically” provide updates on the status of the deployment. The president would also be required to “terminate” the deployment “within sixty calendar days” of that first report, unless Congress voted to authorize further action.
Johnson complains the War Powers Resolution is unconstitutional because it ties the president’s hands. Indeed, presidents have chafed against the law’s restrictions ever since it was passed. Nixon himself vetoed the resolution, calling it “clearly unconstitutional.” (Congress voted to override his veto, and the resolution became law.)
But if anything, the resolution expands, not constrains, the president’s powers. After all, the Constitution only mentions the executive’s ability to deploy troops or engage in military action in the context of a war authorized by Congress. But the War Powers Resolution takes it as a given that the president has some authority to engage in congressionally unauthorized conflicts, and it merely sets limits on that extra-constitutional power.
This week, Johnson said the opposite: “If you look back at the founders’ intent, you read the Federalist Papers, you read the records of the Constitutional Convention, I think that is right” that the War Powers Resolution is too stringent.
His sources would disagree.
“The sword is in the hands of the British King. The purse in the hands of the Parliament. It is so in America, as far as any analogy can exist,” James Madison wrote in 1788. “The purse is in the hands of the representatives of the people. They have the appropriation of all monies. They have the direction and regulation of land and naval forces. They are to provide for calling forth the militia—and the president is to have the command.”
Madison had argued at the 1787 Constitutional Convention that “executive powers…do not include the Rights of war & peace.” And according to notes from that convention, Madison and Elbridge Gerry “moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.” This seems to imply the president otherwise had no war powers, except in the event of an emergency.
The reason for this separation was clear. “Nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it,” John Jay wrote in Federalist No. 4. “For the purposes and objects merely personal…which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”
“Exercising the authority to declare war isn’t something we’ve done since World War II,” Johnson noted—correctly. “Since then, we’ve had more than 125 military operations, from Korea and Vietnam to Iraq and Afghanistan. They have occurred without a declaration of war of war by Congress. Presidents of both parties have exercised that authority frequently.”
Johnson is right to say this is a bipartisan problem. But that’s a reason for Congress to reclaim its power, not to continue sitting on its hands in the face of multiple unconstrained executives.
In fact, presidents have skirted the War Powers Resolution’s requirements nearly since it became law. In 1980, President Jimmy Carter deployed soldiers in an unsuccessful attempt to rescue Americans held hostage at the U.S. Embassy in Iran; he notified Congress after but did not consult beforehand, saying the operation was a rescue attempt and did not count as a military action. When the U.S. invaded Grenada in 1983, President Ronald Reagan reported it to Congress but did nothing else, with the White House contending that all soldiers would be gone by the end of the 60-day window anyway.
In 2011, President Barack Obama authorized air strikes against Libya, a conflict he said would take “days, not weeks.” But the action stretched past the 60-day window, and instead of notifying Congress in accordance with the law, the administration contended the strikes were justified because Obama “could reasonably determine that such use of force was in the national interest.” Besides, it wasn’t really a war, the administration claimed, but a “kinetic military action.”
“Presidents have an obligation to obey the Constitution and the law,” David Boaz of the Cato Institute wrote at that time. “But one of the ways that separation of powers works is that each branch of government is supposed to jealously guard its prerogatives from usurpation by the other branches. Too often Congress ducks that responsibility, preferring to let presidents make decisions, make law, and make war without the involvement of Congress.”
It clearly flies in the face of the founders’ intent for the president to have broad discretion to deploy troops into, or drop bombs on, another country, without Congress’ input. Johnson’s attempt to whitewash Trump’s unilateral decision to bomb another country is consistent with past presidents who have asserted unchecked power. And he’s just as mistaken as they were.
