How the War Powers Act normalized presidential uses of force

He mentions in passing that the attack was launched “without the congressional debate and vote that the Constitution requires” but doesn’t cite any particular part of the Constitution that mandates congressional debate or votes before military force is used.

Kaine also closes with a question — “How long will the Article I branch of America’s government remain silent against this wholesale repudiation of our basic constitutional order?” — but he never really explains why Trump’s airstrikes are a repudiation of anything.

And at no point does Kaine mention President Dwight Eisenhower’s deployment of Marines into Lebanon in 1958, or President Lyndon Johnson’s deployment of troops to the Dominican Republic in 1965, or the War Powers Act of 1973, or President Ronald Reagan’s invasion of Grenada in 1983, or President George Bush’s invasion of Panama in 1989, or former President Bill Clinton’s deployment of troops to Haiti in 1994, or former President Barack Obama’s airstrikes in 2011 that killed Libyan dictator Moammar Gadhafi.

Why, it is almost as if Kaine ignored the Constitution, the U.S. Code, and 60 years of precedent before wildly claiming with no citations or legal reasoning that Trump’s Iran strikes are illegal.

Article I, Section 8, Clause 11 of the Constitution gives Congress the power “to declare war,” while Article II, Section 2, Clause 1 makes the president the “Commander in Chief of the Army and Navy of the United States.”

This seemingly simple distinction between declaring war and conducting war has never been so straightforward in practice. President George Washington conducted military operations against the Northwestern Indian Confederacy over the course of nine years without a congressional declaration of war. President Thomas Jefferson sent the Navy to destroy the Barbary States of North Africa without a declaration of war. And President James Monroe sent Gen. Andrew Jackson to fight the Seminoles in Florida, again, all without a declaration of war from Congress.

The reality is that from the beginning, presidents have exercised wide discretion in involving U.S. armed forces in hostilities without a declaration of war by Congress. And while the War Powers Act of 1973 was intended to limit presidential power, it was written poorly to achieve that purpose and has, in fact, merely formalized the process for presidents to use military force without an explicit declaration of war from Congress.

Section 2 of the War Powers Act does state, “It is the purpose of this joint 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.”

It then goes on to assert that the constitutional powers of the president as commander in chief to introduce U.S. armed forces into hostilities “are 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.”

This may sound like a legislative limitation put on the president by Congress, but as Walter Dellinger, Clinton’s assistant attorney general in charge of the Office of Legal Counsel, wrote in 1994, “Even the defenders of the [War Powers Act] concede that this declaration — found in the “Purpose and Policy” section of the [War Powers Act] — either is incomplete or is not meant to be binding.”

What Sections 3, 4, and 5 of the War Powers Act do explicitly require is that in the absence of a declaration of war, the president consult with Congress “before introducing United States Armed Forces into hostilities,” must report to Congress within 48 hours of introducing armed forces into hostilities, and that the use of the armed forces must terminate within 60 days unless Congress permits otherwise.

As Dellinger noted in his 1994 memo, the wording of these sections clearly “recognizes and presupposes the existence of unilateral presidential authority to deploy armed forces ‘into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.’” No “imminent threat” or “national emergency created by attack upon the United States” is required, just the intention of entering armed forces into hostilities or where “imminent involvement” in hostilities is likely.

The 60-day limitation in Section 5 of the act is key here. The War Powers Act intended to prevent unilateral deployments of armed forces into prolonged conflicts such as the Korean or Vietnam wars. Taken as a whole, the language of the War Powers Act makes it clear Congress also intended to preserve the president’s power to use force or the threat of force to achieve diplomatic objectives.

Furthermore, Dellinger and others have noted that “in establishing and funding a military force that is capable of being projected anywhere around the globe, Congress has given the President, as Commander in Chief, considerable discretion in deciding how that force is to be deployed.”

And that is why Kaine’s claim that Trump’s attack on Iran is a “wholesale repudiation of our basic constitutional order” is so absurd. Congress just passed, on a bipartisan basis, not only the National Defense Authorization Act but also the annual appropriations bill for the War Department. If Kaine was so intent on stopping a possible airstrike on Iran, he could have inserted language into either piece of legislation preventing it. Trump had just bombed Iran in June 2025, and he had clearly not ruled out future attacks. The February attack was hardly a surprise.

In fact, it was not a surprise at all because the Trump administration actually briefed congressional leaders about what it planned to do days before the attack. Then it followed that up with a letter after the attack explaining why the action was taken, as is required by the War Powers Act. Trump now has 60 days to conclude the attack, or he must seek congressional approval. None of this consultation would be taking place without the War Powers Act.

In the end, the War Powers Act did what the courts were never going to do: It translated an old constitutional ambiguity into workable rules. The Supreme Court was never going to draw a bright line between “war” and lesser uses of force, and Congress could not anticipate every crisis in advance.

WHY SAN FRANCISCO IS REBOUNDING AND LOS ANGELES ISN’T

By requiring prompt reporting and imposing a 60-day clock, the act created durable expectations that presidents must explain themselves, justify objectives, and either conclude operations or seek legislative buy-in. That framework has held across administrations precisely because it is practical.

Whatever one thinks of a particular strike, the War Powers Act ensures the executive cannot treat military action as a purely private decision.