On Saturday, in a coordinated operation involving more than 100 aircraft, a submarine, and dozens of guided weapons, the U.S. military struck three nuclear facilities in Iran, dubbing the mission “Operation Midnight Hammer.” It was, in President Donald Trump’s own words, an “attack,” one that inserted American service members into an active conflict between Iran and Israel, with the stated goal of severely damaging Iran’s nuclear capabilities.
All of it happened without congressional authorization.
Over the years, we’ve written extensively about war powers and the Constitution, arguing again and again that Congress must reclaim and assert its authority and responsibility to serve as the first branch and decision-making body when it comes to acts of force.
Even if Iran and Israel fulfill the promises of the ceasefire announced Monday by Trump, this attack clearly overstepped the bounds of the executive branch’s war powers. This was far from the first time a president has taken on the war powers the Constitution reserves for Congress, and we fear it won’t be the last.
Get the latest
Join our fight for a more effective and accountable government. Sign up for our Weekly Spotlight newsletter and occasional updates on POGO’s work.
Congress’s war powers are spelled out in Article I, Section 8, Clause 11 of the Constitution, which gives the legislative branch power “To declare war, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Beyond making Congress the only branch with war declaration authority, the clause, in modern terms, also gives Congress authority to permit hostilities on land or sea (or air), be it by U.S. armed forces or other agents of the state.
As we’ve written before, the Constitution’s framers gave this great thought. One of the document’s authors and former president James Madison even said that “in no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
There’s a very good reason Congress was given the power to declare war: It is the branch most closely connected to the people. Every two years, we elect a new Congress. The Constitution endows the branch most immediately answerable to the people with the power to make what is arguably the most significant commitment we the people can make — the lives of our service members.
According to the Constitution, a president isn’t powerless in relation to the military. Article 2, Section 2 names the president the “commander in chief” of U.S. armed forces. But most legal experts agree that acts of hostility require some form of congressional authorization.
As POGO Senior Legal Analyst Katherine Hawkins wrote in 2018, “The argument that the Commander in Chief clause of the Constitution overrides all of Congress’s war powers … simply ignores inconvenient Supreme Court decisions as well as the text of Article 1 of the Constitution.”
Unfortunately, there’s a long history of presidents stepping (sometimes leaping) over this line. From President Barack Obama’s air strikes in Libya to President Ronald Reagan’s invasion of Grenada, several administrations have invoked Article 2 as justification for executing hostile military actions without congressional approval. Congress has consistently failed to put up a unified front against such executive overreach, building a backlog of precedent used by future presidents to repeat such actions.
“There’s a very good reason Congress was given the power to declare war: It is the branch most closely connected to the people.”
Other administrations have justified skirting Congress by offloading authority onto international bodies, such as President Harry S. Truman in justifying the Korean War as a United Nations operation, or Obama suggesting strikes on Libya upheld the legitimacy of the U.N.’s Security Council.
But this justification also fails under constitutional scrutiny. “It is legally and constitutionally impermissible to transfer the powers of Congress to an international (U.N.) or regional (NATO) body,” said The Constitution Project’s Louis Fisher in 2011 testimony to the Senate.
Finally, several administrations have taken advantage of vaguely worded authorizations for the use of military force (AUMFs) to justify years of hostilities after an initial threat has been resolved.
As this history shows, there’s no shortage of precedent for presidential overreach when it comes to war powers. In fact, Congress has taken action in the past to reaffirm its constitutional role.
In the last years of the Vietnam War, which was never officially declared a war by the legislative branch, Congress passed the War Powers Resolution of 1973 to, as the authors put it, “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 the Armed Forces of the United States in hostilities.”
The law lays out requirements for when and how the president should provide reports to Congress (though presidents of both parties have routinely fallen short of these requirements), and it specifies that the president can send U.S. service members into hostilities only under “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” If troops are deployed without statutory authorization, the law requires they be removed within 60 days or immediately upon a vote by the majority of Congress.
When Congress does not wish to take the momentous step of declaring war, but it does support military action, the most common mechanism for permitting such action is an authorization for the use of military force, otherwise known as an AUMF. Over the years, POGO has developed recommendations to ensure AUMFs protect against executive abuses of power and eliminate loopholes that, in the past, have led to prolonged and costly conflicts.
Include proper nouns: AUMFs should specify the name of the enemy (a state or terrorist group, for example) and geographic locations where the military is permitted to use force. Use of force beyond those bounds would require a new AUMF.
Include a sunset date: AUMFs should set a specific timeline in which force is permitted, including an expiration date after which the AUMF cannot legally be used to justify military action.
Include reauthorization requirements: AUMFs should outline the conditions needed to trigger reauthorization of military force in the stated location beyond the stated timeline. The onus should be on the executive branch to justify the need, explain projected costs and funding sources, and present the new planned timeline of action.
Include accountability measures: AUMFs should be contingent on ongoing transparency from the executive branch, requiring Congress be briefed on the details of hostilities committed under the AUMF, including armed conflict and drone strikes, to ensure compatibility with the law and within the bounds of the AUMF’s specific locations, targets, and timelines.
In the case of this week’s strikes on Iran, what should have happened, constitutionally, is clear: The Trump administration should have sought congressional authorization.
In such cases, there are three options: If Congress does not approve the president’s planned use of force, then things end there. If Congress does approve, it can declare war or it can pass an AUMF.
If Congress does support use of force, it must be specific. Congress cannot write a blank check future presidents can use to justify future military actions. As Hawkins has written in the past, an overly broad declaration of war or AUMF runs the risk of presidents using a single authorization to justify years, or even decades, of hostile actions. The AUMF that followed the terrorist attacks on September 11, 2001, for example, “has been interpreted so broadly since it was adopted that presidents have invoked it to conduct military operations in at least 19 countries.”
In this case, however, whether Congress would or would not have approved the Iran strike does not change the fact that executive overreach occurred — yet again.
The question is whether Congress will unite against this latest executive grab at its authority, or whether its members will simply surrender the war powers granted by the Constitution they’ve sworn to uphold.
It’s critical that Congress not let this overreach go unaddressed.
Some members have already laid out a path of action: Congress can call a vote to prevent further hostilities. There are currently two bills that reaffirm Congress’s war powers and require the president to respect them in the event of ongoing conflict: Representatives Thomas Massie (R-KY) and Ro Khanna (D-CA) have introduced a bipartisan resolution in the House, and Senator Tim Kaine (D-VA) has introduced a resolution in the Senate.
In the immediate aftermath of the attack on Iran, members of Congress should also continue to press for transparency. They are entitled to justification for the action, as well as continued oversight and analysis of what happened, how it happened, and to what extent the operation was “successful,” as the president said.
At the very least, Congress can demand written explanations from the executive branch and hold hearings to demand answers to key questions.
In the long term, there are things Congress can do to hold its ground and reassert its war powers:
Congress can improve upon the War Powers Resolution by explicitly defining “hostilities” and the types of military actions that expressly require Congress’s approval.
Congress can repeal vague AUMFs and ensure future AUMFs are written narrowly and specifically.
Congress can approve a new war powers resolution that requires greater transparency from the executive branch on all uses of force.
Congress can work to enshrine and enforce the War Powers Resolution through the courts and judicial review.
Congress finding its courage to reclaim and insist upon its war powers could ultimately serve as a critical protection against executive overreach and democratic instability. The strikes against Iran are not an isolated incident, but rather the latest in a series of presidential power grabs that threaten to not only contradict the Constitution, but to condemn “we the people” to spectator status.
Related Content
FAQ: The L.A. Protests, Military Deployment and the Constitution
