The current military conflict between Iran and Israel has led to speculation about the involvement of American military resources in the region and revived a debate about when Congress needs to approve such actions when taken by the president.
On Tuesday, Rep. Thomas Massie (R-Ky.) and Rep. Ro Khanna (D-Calif.) sponsored a resolution in the House barring President Donald Trump from taking military action in Iran without congressional approval. On Monday, Sen. Tim Kaine (D-Va.) proposed a similar resolution. The lawmakers cited a statute called the War Powers Resolution of 1973 as the source of congressional authority in limiting the president’s powers.
The War Powers Resolution, passed by Congress in 1973 over President Richard Nixon’s veto, sought to ensure that lawmakers have a role in approving armed conflicts involving the United States not formally declared as a war. The last congressional war declaration was in June 1942 against Bulgaria, Hungary, and Romania during World War II.
While Article II, Section 2 of the Constitution spells out that “the President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states,” only Congress has the power to declare war, as an enumerated power under Article I, Section 8, Clause 11.
What Is the War Powers Resolution?
The resolution requires “in the absence of a declaration of war” that a president report to Congress within 48 hours after introducing United States military forces into hostilities, which must end within 60 days unless Congress permits otherwise.
“The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations,” the resolution reads.
The resolution also makes it clear that Congress believes the president’s commander-in-chief powers are limited to “hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and can be exercised “only pursuant to (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.”
Since 1973, most presidents have ignored parts or all of the War Powers Resolution. According to the Congressional Research Service, “presidents have taken a broader view of the Commander in Chief power to use military force abroad. They have variously asserted ‘sources of authority’ … [and] other statutes that do not specifically cite the WPR. Additionally, they have relied on the Commander in Chief power itself and the president's foreign affairs authority under Article II of the Constitution.”
Another Option: Authorizations for the Use of Military Force
However, Congress has passed Authorizations for the Use of Military Force (AUMFs) that give the president the ability to take limited, defined military acts. John Adams was the first president to receive an AUMF from Congress in 1798 during the Quasi-War with France.
Several AUMFs have remained in place from recent conflicts and presidents have cited them as supporting military actions abroad. The AUMF of 1991 gave the president the ability to act against Iraq to enforce United Nations resolutions. Similarly, the AUMF of 2002 stated, “[T]he president is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.”
In 2011, President Barack Obama ordered a military intervention in Libya without asking for congressional approval. Forces were engaged there for about eight months as the Obama administration argued that its military presence didn’t fall under the War Powers Resolution. In 2013, President Obama took the unusual step of asking Congress to approve intervention in the Syrian civil war, after he initially indicated he had the constitutional powers to order limited military strikes without its approval. Congress then deferred to act in Syria. At the time, the Obama administration argued that it didn’t need congressional authorization under the 2002 AUMF.
In 2017, President Trump ordered missile strikes against Syria after a chemical warfare attack, and supporters including Mitch McConnell felt it was permissible under the 2002 AUMF. The Trump administration argued that the attacks were allowed under the president’s Article II powers to protect the “national security and foreign policy interests of the United States.” Also in 2020, Trump cited the 2002 AUMF as supporting his decision to order a fatal drone strike against Iranian Gen. Qassem Soleimani, the leader of the Islamic Revolutionary Guards Corps (IRGC) Quds Force.
In recent years, President Joseph Biden also cited the AUMF of 2002 and the same Article II powers asserted by the first Trump administration in taking military actions against Iran-backed militant groups in Iraq, Syria, Yemen, and the Red Sea.
The Biden administration filed reports within 48 hours about its actions to Congress as required by the War Powers Resolution with the caveat the president was acting to “protect United States citizens both at home and abroad and in furtherance of United States national security and foreign policy interests, pursuant to my constitutional authority as Commander in Chief and Chief Executive and to conduct United States foreign relations.”
Scott Bomboy is the editor in chief of the National Constitution Center.
