War powers.
For years, America’s cowardly political leadership class has pretended that the War Powers Act entitles the president to bomb whoever the hell he wants for 60 days without approval from Congress. Only after those 60 days have run does he have an obligation to seek authorization from the legislature.
Three seconds of thought about why the law was written will reveal why that’s stupid.
The War Powers Act was passed in 1973 to rein in Richard Nixon after he expanded the war in Vietnam by secretly bombing neighboring Cambodia. The point of the law, obviously, wasn’t to justify that bombing retroactively by granting Nixon a 60-day free pass. The point was to affirm that, with very limited exceptions, the president can’t engage in hostilities with a country unless Congress says so.
Nixon vetoed the bill when it reached his desk, but lawmakers felt so strongly about it that they overrode his veto by bipartisan supermajority margins. It was a bold play by the legislature to claw back its rightful war-making authority under Article I—not to create a massive two-month exception to it for the executive branch.
Here’s what the War Powers Act actually says, right up top in the “Purpose and Policy” section: “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, 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.”
Note well the word “only.” There’s been no declaration of war in the case of Iran, no statutory authorization, and no national emergency created by an attack on the U.S. à la Pearl Harbor or 9/11. Absent any of the three, the president has no constitutional authority to use the military in this matter, period. There’s no “60-day deadline” carve-out to any of that, contrary to what Susan Collins seems to believe.
Ironically, had Trump refrained from joining Israel’s strike on February 28, he’d be on firmer legal ground. Marco Rubio claimed that the president attacked Iran preemptively because he feared the Iranians would retaliate against Israel’s opening salvo by targeting U.S. assets around the region. If Trump had waited until Iran threw the first punch, he would have had a debatable argument that he was free to respond without congressional approval under the “national emergency” exception in the War Powers Act.
Although he probably wouldn’t have needed it. A preemptive Iranian attack on American regional bases should have, and probably would have, caused Congress to authorize him to use military force in response.
The 60-day deadline laid out in the War Powers Act comes into play only when the president initiates hostilities “in the absence of a declaration of war”—which, to repeat, he’s lawfully entitled to do only if there’s a national emergency caused by an attack on the United States. That’s not how the Iran war unfolded. The deadline simply doesn’t apply in this case.
The reason Collins and her colleagues pretend otherwise, perverting the law so that it now means the president can unaccountably kill whichever foreigners he likes for two months, is because they’re afraid to confront the cult of the presidency. Most lawmakers, Democrat and Republican, don’t have the stones to risk the wrath of their base by explaining that a war launched by a president whom that base supports is flatly unconstitutional, as Trump’s Iran adventure plainly is.
They’d be accused by their own voters of disloyally undermining the leader of the party in his role as commander-in-chief and of endangering troops in the field by signaling ambivalence about the mission to the enemy. To avoid that, members of Congress have concocted a polite fiction about what the War Powers Act says that amounts to a compromise with the White House. You can destroy any country you like while we look the other way—but only for 60 days.
That’s transparently what Collins is up to in her misreading of the statute. Caught between a law that makes Trump’s war unambiguously illegal and a Republican base that unambiguously believes laws shouldn’t apply to their hero, she’s splitting the difference absurdly: The president is above the law for two months and not a second longer. Preposterous.
Resetting the deadline.
Even more preposterous is the White House’s explanation for why the fictional 60-day deadline shouldn’t be understood to expire today. To believe that the ceasefire tolled the deadline is to treat war as sport, as if Trump is a head coach calling a timeout.
In the first place, “to be very, very clear and unambiguous, nothing in the text or design of the War Powers Resolution suggests that the 60-day clock can be paused or terminated,” one legal expert explained to the Associated Press. It’s not enough to pretend that the president has constitutional carte blanche for two months to make war; to justify what Trump is doing, you also need to imagine that the law creates a “game clock” that can be stopped and started as necessary when it simply doesn’t.
It’s also hard to reconcile the White House’s nuances about a 60-day clock with the argument some Republicans have made that the U.S. and Iran have effectively been at war for 47 years. If that’s true, we’re in the position of having to believe that hostilities simultaneously do and don’t exist. Operations since February 28 are just one battle in a long conflict that’s raged since the Carter administration—but also the ceasefire means that nothing sufficiently warlike is happening at the moment that should concern the War Powers Act.
The notion of a 47-year war is precisely why nothing should have happened to Iran without approval from Congress. Lawmakers have been weighing the Khomeinist threat for decades, at any point of which they could have authorized military force to address it, but never have. That makes the current conflict something like the opposite of a “national emergency” imagined in the War Powers Act. Instead of the president reacting to a crisis unexpectedly foisted on America, he created a crisis for America that Congress had spent nearly half a century mulling but avoiding.
Where the White House’s argument about the deadline no longer applying gets truly ridiculous is when you remember that the “ceasefire” with Iran isn’t actually a ceasefire. Trump has ordered a naval blockade of Iranian ports in hopes of crushing its oil economy and is reportedly intent on sticking with it indefinitely to force the regime to sue for peace. A blockade is an act of war by any definition. The U.S. air campaign in Iran may have ended, but “hostilities” within the meaning of the War Powers Act assuredly have not.
Even if Trump lifted the blockade, Iran might persist in declaring the Strait of Hormuz off-limits to U.S. ships and would almost certainly go on extorting “tolls” from transiting oil tankers, with all of the fun ramifications for Americans that entails. The enemy also gets a say in whether hostilities continue, in other words. Why should the president, who embroiled Americans in this conflict, get to pretend otherwise just because it’s legally convenient for him to do so?
Letting Trump define the parameters of “hostilities” to suit his own political needs would cause other problems. For instance, this idea would create a loophole that would swallow the War Powers Act whole:
Richard Goldberg, who served as director for countering Iranian weapons of mass destruction for the National Security Council during Trump’s first term, said he has recommended to administration officials that they simply transition to a new operation, which he suggested could be called “Epic Passage,” a sequel to Operation Epic Fury.
That new mission, he said, “would inherently be a mission of self-defense focused on reopening the strait while reserving the right to offensive action in support of restoring freedom of navigation.”
It’s ludicrous to distinguish the operation to break Iran’s stranglehold on the strait from the operations against the regime with which the war began. The latter caused the former. The combatants involved are the same. One might plausibly call the Hormuz standoff a separate battle, but it’s all the same war.
You can understand why the logic would appeal to hawks, though. Conceivably, a president could wage war without congressional approval for years by creatively redefining the mission every two months as the battlefield evolved, treating each new phase as discrete “hostilities” for purposes of the War Powers Act. Never again would an executive who illegally commandeered Congress’ warmaking power be troubled by a 60-day deadline that, er, doesn’t really exist. He could simply reset it at will—as the president is attempting to do right now.
Preposterous. But not as preposterous as things will get in the near future.
The end of competitive democracy.
When I say there’s no realistic solution to unilateral presidential warmaking, I’m not just being my usual Eeyore self.
Suing Trump or one of his successors under the War Powers Act won’t work. It should work, law professor Erwin Chemerinsky argued in an op-ed published this week. “If the federal judiciary, up to and including the Supreme Court, won’t uphold its responsibility” by declaring the Iran war illegal, he wrote, “it will nullify our Constitution’s design that two branches of government should be involved when our country goes to war.”
Right, but a ruling of that sort would be a double whammy for the court. It would amount to the federal judiciary asserting power over the commander-in-chief’s battlefield authority, a dicey proposition in a country where unelected “activist judges” are forever being accused of micromanaging democratically elected officials. And it would create an obvious enforcement problem: What happens if, or when, Trump defies the court’s ruling and presses on with the war anyway?
“Mr. Trump might disregard such an order,” Chemerinsky allows. “But that isn’t a reason for the federal judiciary to abandon its duty to enforce the law.” I agree in principle: The fact that the president can’t be stopped from behaving unlawfully isn’t an excuse to pretend that he isn’t behaving unlawfully. But I suspect that a court that worries about its institutional credibility would rather become accomplices to Trump’s lawlessness by declining to rule on the war’s legality than rule and risk being ignored.
Congress is the only branch capable of addressing the problem. And if American democracy worked as intended, it would have a strong incentive to do so. In an election year, a war as unpopular as the current one should have members in both parties scrambling to come up with legislation to reclaim warmaking authority from the president like … well, like the War Powers Act. The American people are aggrieved about the conflict and will reward lawmakers who take their grievances seriously with reelection. In theory.
But democracy doesn’t work that way in practice. And as of a few days ago, it’s going to work that way going forward even less than it already does.
As many others have noted, the Supreme Court’s ruling in Louisiana v. Callais on majority-minority gerrymandering is certain to accelerate the ruthless race to the bottom that’s already playing out in redistricting. Red states in the South will move to redraw African American voters out of deep blue districts and into redder ones, inevitably increasing the number of House seats held by Republicans. Blue states around the country will retaliate by redrawing red-leaning localities into bluer districts, pushing the number of GOP-held seats statewide as close to zero as possible.
As these electoral nuclear exchanges continue, the number of competitive House elections across the country will shrink remorselessly. After 10 years or so of cutthroat partisan redistricting, one can envision each party having a chokehold on roughly 215 seats apiece and control of the lower chamber each cycle being decided by the five or so districts that remain contested.
Once that happens, the ugly hyperpartisanship to which we’ve all grown accustomed will feel like pattycake by comparison. General elections won’t matter in House races in a mega-gerrymandered America; nearly all congressional seats will be decided by primaries, and primary voters tend to be angry partisans who want their leaders to practice politics as bloodsport. More so than now, House candidates will be incentivized to treat compromise with the other party as treason.
Meanwhile, with control of the House likely to be perennially tight, the two parties’ bases are destined to demand loyalty from their representatives even more fanatically than they already do. If you think House Republicans are unwilling to cross Trump in 2026, wait until we’re in an era where every president’s ability to move their agenda depends on the more-or-less unanimous support of their party’s House caucus on every vote. Cultish expectations of mindless lockstep partisan loyalty in American politics will go from a mostly Trumpist phenomenon to standard operating procedure.
Put all of that together and tell me how Congress will ever muster the bipartisanship needed to reclaim legislative powers from a renegade president.
The opposite is more likely. To a greater extent than in the present era, the White House will start all American wars unconstitutionally, the president’s base will refuse categorically to hold him accountable, and House members in his party will know beyond doubt that they’ll lose their seats if they undercut him by asserting their branch’s rightful Article I authority. The end of competitive democracy being brought about by redistricting will mean the birth of autocracy, with Congress reduced to nothing more than a Duma-esque rubber-stamp.
Limitless partisan hostilities in America will mean functionally limitless “hostilities” under the War Powers Act for any commander-in-chief who wants to initiate them. In the future, the 60-day deadline is forever.
