The War Powers Act Explained

The Constitution draws a bright line that most of us never hear clearly: Congress declares war, and the President commands the military. So why does modern American conflict so often start without a formal declaration, and why does the “commander in chief” argument keep winning in practice?

We sit down with Dr. Sean Beienberg to unpack the War Powers Act, also known as the War Powers Resolution of 1973, and the long tug-of-war over constitutional war powers. We connect the founding debates in Federalist 69, Pacificus, and Helvidius to the Civil War-era Prize Cases, where the Court recognizes defensive presidential action while still rejecting the idea that one person should decide to move the nation from peace to war. From there, we track how authorizations for use of military force (AUMFs) become the modern workaround, and how Korea and Vietnam reshape expectations about what “counts” as war.

The most sobering part is enforcement. Courts largely treat these fights as political questions, meaning they won’t order troops home, and Congress is left with blunt tools like funding cuts that are politically risky. We also dig into how the 2011 Office of Legal Counsel Libya memo broadens the modern theory of presidential power by narrowing what qualifies as “real war” and expanding what qualifies as a U.S. interest. The result is a War Powers framework that exists on paper, but often feels hollow in real time.

If you care about separation of powers, checks and balances, and how U.S. military force gets authorized, this conversation is for you. Subscribe, share with a friend who loves civics, and leave a review with your take: should Congress reclaim the war power, or has the presidency already absorbed it?

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Transcript

0:02

Welcome back to Civics in a year. Today we're talking about what always feels like a timely topic: the War Powers Act. We have Dr. Sean Bienberg back with us. Dr. Bienberg, to start with, because I feel like when I taught, this was something that students often got wrong. The president cannot declare war. Only Congress can. But war hasn't been declared since I count the AUMFs, but Okay. What is the War Powers Act then? Yep. But your your intuition is correct. So and if you look at Federalist 69, so this goes back basically to a debate about the founding from the founding. And this

Welcome And War Powers Basics

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is one of the places where Madison and Hamilton sort of disagree and sort of not. But traditionally, the power to make war was an executive power. Okay. The U.S. Constitution clearly transfers the power to declare war and the power to negotiate treaties, to uh excuse me, the power to ratify treaties to the Congress gets declared war, the Senate gets the treaty power. So that part of the executive power is moved over. And you can read about that in Pacificus 1 and Helvidius

Founders’ Design And The Prize Cases

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1. Or the best book on this is Michael McConnell's uh The President Who Would Not Be King, showing basically how the founders envisioned moving that over. So Congress is supposed to dec is supposed to declare war, clear, clear authorized power. There's a little bit of wiggle room that the court recognizes during the Civil War, which is they say the president has authority as commander-in-chief. And they say that allows the president to obviously deploy force for defensive purposes, but to not initiate combat. And so that's a case called the prize cases, which is a really uh important case that I think people to look at. It's pretty uh pretty approachable. But even Hamilton, with a more expansive version of foreign policy power in the executive, says the president cannot declare war. He talks about this extensively in Federalist 69. And so he tends to he tends to describe it in that scenario as basically Congress sets the policy of we are now at war. That's a big conversation you want to have. Yes. Then the executive is supposed to sort of execute the law. So you can see sort of an analogy to domestic policy in that sphere. The issue becomes uh does that mean the president can't transfer troops? Does that mean that the president can't deploy troops to save Americans if a country is having a revolution or something like that? Um so Congress not does declare war, but it also uses early on what we would call today an authorization for use of military force, where Congress will say, if the president thinks that it's necessary to use force, we in Congress are okay with that. We have basically recognized there is, to our satisfaction, a very plausible need that the president needs to act here. And so that's not formally declaring war in the same sense, but even as me as a constitutional stickler who hates the executive branch power abuse, I think that one's pretty fair. You will find some hardcore sticklers that will say doesn't say control F, declare war. It's not a legitimate authorization. I I'd be happy in a universe where we still always used AUMFs. So Congress

AUMFs And The Korea War Precedent

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authorizes use of military force against, say, the Barbary pirates, but there aren't that many formally declared wars. Um, lots of small deployments. So probably the most controversial version, and this was if you remember when we talked about Henry Cabot Lodge's worry about the Versailles Treaty, was precisely this that he said if we sign a treaty that commits the US to basically come to other countries' defenses, he wanted to just make sure that it had a section in there saying Congress must be the one ultimately declaring war to enforce this treaty. And that was Lodge's objection, was that this section was so important to make sure that Congress bought in to a deployment of for a war. Okay. The Korean War sort of hollows this out because in the Korean War, Harry Truman says, ah, we need to have a UN police action. This is an actual sustained war, right? So even if you want to say like this is really just sort of a police action or a defensive thing for like Korea's an actual war. Yes. But the courts don't nobody does anything about it, really. And then so the warp, so that sort of gets us to where we are before we get to Vietnam, which is what sort of spurs all this up. But I see you pointing at your book there. So I want to so can I ask then? Because in Article 2, it article two, section two, it says the president shall be a commander-in-chief of the army and navy of the United States. And the militia when called to their so if I'm again just doing a first read of this, which just is not my first read of the constitution, just FYI, and you're talking about Korea, which I do want to say both of my grandfathers were Korean War veterans. Not commenting on the whether it was just a fine or something. Yes, it's just you're not commenting on that, but I'm saying if this is a first read, could the argument be made, well, he is the commander-in-chief of the armed forces, therefore can do these things. That is an argument that folks have made. They say the argument is that declaration of war, I think this is

Commander In Chief Argument Explained

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associated with mostly with the scholar John Yu. There are a few others who argue that declaring war involves all of these sorts of political changes. Because when I think of declaring war, I think of like World War II, where everybody is declaring war on each other because Article 1, Section 8, it's very small. Yeah, it's like let's to declare war. Yeah. That's it. So the argument is that basically use of force is not even some this use of force is more or less purely within the president's discretion. And if Congress has a problem with it, they can defund it. And so the argument, this version, is that basically declaring war involves changing your political status with another country. It involves potentially changing your own domestic interactions and laws and operations, you know, like you're going to trigger like a World War II rationing model or something like that. And so that's the argument that you and others have made to say, nope, this is actually something that carried over from the British model, where the ex, you know, King George didn't have to ask Parliament for a declaration of war. That was just an executive power. So you's argument is that part basically just carried over from the executive power from the British monarch to the presidency. I think most scholars have the argument, and they say, no, this was clearly one where they said we do not want to have that kind of executive power. We want to move the question of whether to initiate force to Congress to have that deliberated on. But we don't want Congress like micromanaging troop deployments. And so that was what the division of labor was. They want to have the executive manage the war, but the Congress representing the American people needs to decide are we really going to initiate force or not? And if attacked, that the president could deploy the military. And this is the argument again in that prize case is you know, if you if you have soldiers attacking you or a nuclear missile flying or whatever, you don't need to call Congress in and say, do we shoot that down, do we shoot back, whatever. So the president, the argument is in those prize cases, the president can defend, but the president, and you know, that may even include like attacking some soldiers or something, but the president can't sort of be the one making the decision to change us from peacetime to wartime. So those two constitutional arguments do exist. Again, I think most scholars tend to take the view that the design is supposed to be at least for major involvements. At least for major involvements, Congress needs to be the one making that decision. But again, as you alluded to, there are others that take the read that you suggested, which is deploying force is a presidential thing. So then what happens in Vietnam? So in Vietnam, the nominally the justification is that the US sends advisors over to basically help keep an eye on things, as the the Vietnam is basically the war to kick out the French is happening. The claim is that the U.S. ships are fired on in the Gulf of Tonkin, and so therefore Congress authorizes President Johnson to use force as necessary to repel that and to stop further aggression. And so that's basically taken as the green light to fight the Vietnamese war, to fight what becomes the Vietnam War. Eventually, Congress tires of the war, it becomes very unpopular, and Congress actually repeals the authorization for use of

Gulf Of Tonkin To Vietnam Fallout

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military force. Nixon signs it, but sort of keeps the war going anyway, arguing, I'm commander-in-chief. You can't do that. So eventually the Vietnam War ends, and Congress says, okay, we are not happy with the idea that the president can basically think that they can run these things unilaterally. So they passed the war powers resolution in 73. And the war powers resolution officially says, uh, I'll oversimplify a little bit here, but officially says basically, after 60 days of, and there's various caveats and extensions and reasons, but the core of it is effectively after 60 days, you've either got to bring troops home if the president has deployed them for force, or you have to come to Congress for a declaration of war or an authorization for use of military force. Officially, no, there are and the presidents, of course, immediately say this is unconstitutional. Basically, every president from time immemorial has said that. Some of them will passive aggressively file reports saying consistent with the war powers resolution, but they will never say as a required by,

The War Powers Resolution 60-Day Clock

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because they don't want to concede its legitimacy. There are arguments, I think, actually, that's pretty interesting and potentially a pretty good one, that the war powers resolution is unconstitutional by implicitly conceding the president's got 60 days. If the president can get it done in 60 days, then we're good. The war powers resolution officially says you can't construe it to do that. But in practice, it's basically been seen as spotting the president that 60 days. And so the war powers resolution, again, there's all these protocols sort of expediting the call-ups of an AUMF or a declaration of war after time and extensions and what the paperwork is. But the core of it is supposed to be Congress. And so implicitly you could say Congress is saying, all right, you got to deploy force temporarily, minor stuff, immediate defense, fine. But you got to consult, you got to at least then talk to us. And after 60 days, if we haven't said thumbs up, you have to bring the troops home. Now that ends up being hollowed out to my mind, most clearly, by and so you know, the the first Gulf War, it's uh it's always I always call it now Gulf War I, Gulf War II. I guess now it's enough time has passed. I don't think of it that way. But they get an AUMF for that. They don't get an AUMF for Syria. No, not Syria, excuse me, Serbia in 1998 with Bill Clinton. Some members of Congress actually try to sue and say the Clinton administration is violating the war powers resolution, and the Supreme Court, not the Supreme Court, they don't take it. The DC Circuit Court says we are definitely not getting involved in whether a war is constitutional or not, uh, which is not the first time that's happened. You know, the the classic Supreme Court case, we were talking about this earlier, actually, when we talked about First Amendment today with the teachers, USV O'Brien, the draft card burning case. There's a really funny dissent that William O. Douglas says, which is maybe this would be legal to prosecute this guy for burning the draft if this was necessary to prosecute a war. But we didn't declare war in Vietnam. He wants to say the AUMF's not good enough. So he wants to say it's unconstitutional on those grounds. But otherwise, courts generally have the attitude of, like, no, we're not, we're not like what would that even look like? John Roberts sending the like saying send bring the troops out. Like, you just can't imagine what that universe would look like. So it's non-justiciable. So it has to be basically the political branches fighting. So the so the Supreme Court's again let's keep saying Supreme Court. The circuit court in the 90s says we're not adjudicating that. In 2011, Barack Obama's Office of Legal Counsel releases a Libya memo. Have you ever read that memo? Libya memo. It basically says, I'll be very glib here because this really annoys me. So sorry, I'm taking off my objective professor hat here. Uh, it effectively says it's not a real war if it's easy and they can't shoot back in a meaningful way. Okay. It's not quite that glib, but it effectively says it's not a war. You don't need to go to Congress and consider it a war if it is a minimal risk of casualties, there's a minimal risk of counter defensive operations, whatever, by the by the enemy. But the short glib version really is unless they're going to meaningfully shoot back, you don't have to go to Congress. The other thing that it does

Courts Step Away And Congress Defunds

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in the OLC memo is it expands the justification by saying that military force can be initiated for the interests of the United States. Whereas before it had even said, like, if you're shooting at U.S. soldiers, if you're getting ready to attack, or something along those lines. Whereas in that case, they basically say, like, the credibility of the UN is now or the credibility of the global order, or the credibility is a is an interest of the United States. So the OLC memo, as you can see, massively expands executive war-making power because they the j the justification is much wider. And they basically say it's only a real war if it's going to be long and people are going to die. But otherwise, or significant numbers of people are going to die. But otherwise, president go nuts. I have shocking news. This memo has been cited by the Trump administration for their various uh again. I'm not commenting on the merits or lack of merits on any of these. We're just saying how it's being used. I'm just talking about, I am talking about the legal merits of the OLC memo, which I think are crap. But the policy of any of these conflicts, like that's above my pay grade. Take that up with my colleagues who do foreign policy. But the OLC memo is basically what now anchors pretty much that 2011 OLC memo pretty much anchors claims of executive power in war. And so yeah, the the Trump folks side it, Obama used it against Libya. So the war powers resolution does seem increasingly hollowed out. Not that it was ever super strong, but it seems even hollower now. So in current events, we, you know, thinking about the conflict in Iran and President Trump running, and I'm putting this in quotes, running out of time because war has not been declared with Iran. Or an AUMF, which is worth noting again, George W. Bush did those for Iraq. So it's not like we've never after the War Powers Resolution, nobody paid attention. Yeah. They did an AUMF in the Second Gulf War, they did an AUMF against Afghanistan, very open-ended, which has been another way that basically, because it says that you know, anybody involved with terrorism, like the language in that AUMF against Al-Qaeda is really frighteningly open-ended. And some folks have said maybe we should clamp that down a little bit andor repeal it and or say who we're actually

Libya Memo And Expanded Executive Power

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fighting with that. But by the strict letter of the law, the AUMF, that's expansive. But yeah, sorry, I cut you off there. No, you're good. So after 60 days, if the president, whether it's President Trump or whomever else, because this is not a podcast, political commentary podcast, this is a civic knowledge podcast. You're partisans for the Constitution. Yes, we are partisans for the Constitution. If he does not pull troops back and continues the conflict, what can Congress even do? And has that happened in history? Congress can effectively defund the military. But then Congress is the bad guy, right? Because they're leaving right. You can imagine the ads, they cut it. I mean, this was where John Kerry got in trouble with his. I did vote for the war before I voted against it. He wanted to pivot back on because nobody wants to be seen as being against the troops, right? The ads cut themselves. Yes. And so that this is part of the argument that that 1998 Supreme Court, or I keep saying the circuit court case, the member of Congress, the Supreme Court, the court says, look, if you've got a problem with it, defund it. He says, I can't just defund the war. Like that's I I can't politically survive that. They're gonna destroy us for that. But that that is the argument that if Congress really has a problem with it, they can defund it. And for various

What Congress Can Do Now

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reasons, they're not that keen on defunding it. Yeah, so the war powers resolution, again, you it's not judicially enforceable. Yeah, right. It's not like John Roberts is gonna call up Pete Hedgeh and say, You gotta bring the troops home. It's unconstitutional because you didn't do the AUMF. So presidents, again, have continued to say it's unconstitutional. And presidents, regardless of political parties. Every president has said the war powers resolution is unconstitutional. Some of them have still gotten AUMFs, like I alluded to both of both presidents Bush got AUMFs, but even then they sort of through gritted teeth didn't concede the legitimacy of the War Powers Resolution. But Obama and Trump have been more comfortable bucking it even more so with that OLC memo. And again, not commenting on the merits of any of the particular conflict. But so the war powers resolution does seem like it's to the extent it ever had any teeth, is effectively a dead letter. Well, and now I want to go because I'm looking at the the top part of this authorization to use military force in Libya and just the first couple lines. The president has the constitutional authority to direct the use of military force in Libya because he could reason, like it basically is like, I can do this, I don't need Congress. And so now I want to go back through the presidents and see like at the top of these AUMFs, like how they wrote this, because it's not a partisan issue. It just seems to be a president's hate this. You don't mean the AUMFs, you mean their deployments. You mean they're oh like when you said AUMF, because OLC is not Libya is not an AUMF. It's a declar, it's an authorization, it's it's a claim of authority, but it's not an authorization. Oh, it's not an authorization from Congress. It's them claiming authority, saying, why we can do this, not that Congress has authorized us to do this. So the Libya memo is them saying we don't need to go get authorized by Congress because we already have it. That's the difference between the AUMFs where they where the president's Bush both said, we want to go, you know, we need to fight the Iraqi government for X, Y, and Z reasons. And Congress said, go for it. That's not what happened with OLC. That's not what's happened with Iran. Right. There are some, there are a few members of Congress who have said, I'm uncomfortable with the president having initiated this, but I support the Iran war on the merits. Yeah. Let's do an AUMF to do this right. But their colleagues don't have any interest in that because as we talked about, then Congress is potentially the bad guy. Whereas, you know, this is one of the places that a theme that keeps coming up on these podcasts is that Congress is increasingly happy to duck responsibility, right? So at this point, right, if the Iran war goes well, like Republicans can say, hooray, Donald Trump did a good job for us. If it goes badly, they can say, ah, well, we didn't have anything to do with it. And Democrats say, like, well, we didn't vote for it or against it. So like our our hands are clean too. So now it is worth noting real quick. The War Powers resolution is pre-Watergate, but it's pre-I mean, it's in 73, right? So it's like Nixon hasn't fallen yet. Um there's a set of things that happen when Nixon goes down, and this also connects to things like the tariffs. Congress passes another kind of inspired by the war powers resolution, various other statutes and rules saying that, for example, emergency powers can be constrained. They'll be granted, but then we can yank them back. So again, they're trying to not be quite so strict as say James Madison would have them. Congress has to pass it, then the president can execute it. They're saying the president can have more delegation, but we want to have the authority to pull it back. So that

Legislative Vetoes And Emergency Powers

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the tariffs that were recently struck down were authorized by a statute called the IEEE PA, what were claimed to have been authorized by a statute called the IEEE PA. But a lot of those statutes had what were called legislative vetoes in it, and the courts struck those down defensively so, saying, look, the Constitution has a real clear protocol for how you pass those. House passes it, Senate passes it, or vice versa, president signs it. You can't do this thing where you say, President, you can do it unless one House doesn't like it and then can claw the power back. So the problem though is that after they strike those legislative vetoes down in a case called INSP chata, in a case called INSP Chata, then you have to go back to Congress to have both houses repeal an executive action like that. But then the president can just veto that. So there's in the 70s, there's this broader effort to constrain executive power, but with the War Powers Resolution having proven largely toothless, and the legislative vetoes having been struck down as unconstitutional, I think defensibly, but for this purpose is expand to basically presidential power, which is obviously one of the many themes that we keep talking about, which is this just the steady, almost over-determined expansion of presidential power over uh over the 20th century. And Congress doesn't really seem of either party that interested in. There are a few members here and there, but most of them have like basically said, I give up, I quit. Like Ben Sass, for example, who's off was somebody who was quite into this, and he basically threw up his hands in the air and went to become an academic. And obviously, he's in bad health now. Um, but he was somebody, but members who are willing to say, like, I don't care that it's a policy I like president can't do this. Falling numbers are are dwindling. So worth worth worth thinking about andor uh honoring those folks that do potentially be willing to willing to push back. But so yeah, this uh effort in the 70s to have Congress basically reassert in this case their authority to declare war from the president. Some of these don't seem like they're uh quite faring so well in the last few decades. Dr. Byanberg. But the tariffs the but I they at least did, you know, the the the tariffs case, the IEEE PA, they did at least say the Supreme Court did step in on that one and say this exceeds the statute's authorities, even on that one. But emergency powers are all over statutes, but there's they were only authorized expecting that legislative veto. So there's an argument that I think that the courts probably should have struck all those delegations of emergency powers down when they struck down the legislative vetoes because the two were so deeply intertwined with one another, but they didn't, and so that's where these all these little statutes that now presidents try to grab at, poke at, and expand, expand their power with again. We've seen that phenomenon from presidents of both parties of late. Is there a possibility that the War Powers Act is ever challenged or turned over? Or do we think that it's so deeply entrenched? I mean, war is so complicated. It is not as black and white as Congress declares war as president is the commander-in-chief. Is there a possibility that it gets repealed by Congress? I mean, the the courts will never the courts will never strike it down and the courts will never enforce it. So if Congress chooses to repeal it, no. I think members of Congress probably have enough shame that they would probably never straight up repeal it. That would just be such an open admission of their own of their own impotence. I don't see them straight up repealing it. But I mean it's

Can War Powers Be Revived?

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it's functionally, it's functionally been completely gutted by to the extent that it was ever had teeth, but yeah, between the OLC memo uh with uh and uh Iran. Maybe things will change, maybe they will go get an AUMF, whatever. I don't know. But as of whatever today is, it seems like several of the last presidents have pretty thoroughly, pretty thoroughly put a stake in the war powers resolution. And I would say broadly Congress is Article 1, Section 8 authorization to declare war. Which again is so small. Like it's it's just a tiny little piece of Article 1, Section 8. Dr. Beinberg, I feel like we could argue about this forever, but thank you for your expertise on the War Powers Act of 1973.