If, as Lincoln wrote, the framers of the Constitution intended that “no one man should hold the power”Footnote ¹ of bringing the oppression of war upon the nation, modern American practice has veered sharply from that intent. Seldom has the concentration of the war power in presidential hands been more evident than during the so-called “Twelve Day War.”

The United States and Israel worked as a “team” against Iran, in President Donald J. Trump’s word.Footnote ² Months before Israel’s unprovoked and unannounced attack on Iran on June 13, 2025, President Trump mulled military strikes against Iran if Iran refused to enter into a new nuclear deal. “If they don’t make a deal, there will be bombing,” President Trump said in a telephone interview.Footnote ³ “It will be bombing the likes of which they have never seen before.”Footnote ⁴ In the days following Israel’s June 13 attack on Iran, President Trump considered dropping a 30,000-pound “bunker buster” bomb on Iran’s fortified nuclear facilities. Heading to the Situation Room, President Trump averred that he was no longer “in the mood to negotiate” with Iran.Footnote ⁵ He threatened Iran’s Supreme Leader, Ayatollah Ali Khamenei, saying “we know exactly where” he is, adding that “we are not going to take him out (kill!), at least for now.”Footnote ⁶ On June 17, President Trump demanded Iran’s “UNCONDITIONAL SURRENDER.”Footnote ⁷ Still, he remained noncommittal. “You don’t know that I’m going to even do it. You don’t know. I may do it. I may not do it. I mean, nobody knows what I’m going to do,” he said, adding that he “like[s] to make the final decision one second before it’s due.”Footnote ⁸ Five days later, on June 21, U.S. warplanes bombed Iran’s Fordo nuclear facilities. The United States incurred no casualties during the strike or later as a consequence of Iranian retaliation.Footnote ⁹

Although the White House, “consistent with” the War Powers Resolution, notified Congress within forty-eight hours of the attack that “United States forces conducted a precision strike against three nuclear facilities in Iran,”Footnote ¹⁰ the deed was done. President Trump did not seek, and Congress did not provide, statutory authorization for the attack. In its aftermath, questions arose whether Iran had been “very close”Footnote ¹¹ to obtaining a nuclear weapon, as President Trump had claimed, and whether the attack had “completely and totally obliterated”Footnote ¹² its capacity to do so, as he further claimed. President Trump warned that he could initiate another such attack should Iran try again to acquire a nuclear capability.Footnote ¹³

I have argued that, in light of the level of risk incurred—President Trump’s assessment was that the war “could have destroyed the entire Middle East”Footnote ¹⁴—the United States’ attack on Iran unconstitutionally impinged upon Congress’s war power.Footnote ¹⁵ Others have argued that it did not.Footnote ¹⁶ Some have suggested that the law provides no answer.Footnote ¹⁷ Yet it would be a mistake to regard the Trump administration’s war powers claims as unique. Recent presidents also ordered the use of force in Yugoslavia (Clinton) and Libya (Obama) without congressional authorization. Although “walked back” by White House staff, President Joseph R. Biden, Jr. promised four times to defend Taiwan, five decades after the United States had terminated a Senate-approved treaty committing it to do so.^{Footnote 18} President Trump arguably adhered to the same view of presidential power in offering Ukraine a security commitment in “Article 5-like language,” in the words of his envoy Steve WitkoffFootnote ¹⁹—even though a NATO-like presidential security commitment to Ukraine, like a commitment to defend Taiwan, would implicate Congress’s war and appropriations powers as well as the Senate’s treaty power. Each of the seven security guarantees that the United States extended to its allies after World War II to contain the Soviet Union were set out in treaties that were accorded the advice and consent of the Senate.Footnote ²⁰

The contemporary de facto if not de jure power of the executive to commit the nation to war might be summed up as follows:

It is significant that these words were written over half a century ago, in the report of the Senate Foreign Relations Committee on the National Commitments Resolution.

The resolution represented Congress’s first formal recognition of a long-incubating problem, labeled four years later by Arthur Schlesinger in his landmark book, The Imperial Presidency. The resolution was authored by the esteemed chairman of the Senate Foreign Relations Committee, J. William Fulbright. Its final form, adopted on June 25, 1969, consisted of a single sentence: it defined a national commitment as “the use of the Armed Forces of the United States on foreign territory, or a promise to assist a foreign country, government, or people by the use of the Armed Forces or financial resources of the United States, either immediately or upon the happening of certain events.”Footnote ²² Such a commitment, the resolution provided, could be made only “by means of a treaty, statute, or concurrent resolution”—that is, with Senate or congressional approval.Footnote ²³ Perhaps anticipating the resolution’s potential ramifications, the Johnson and Nixon administrations both opposed it,Footnote ²⁴ something extremely rare in the history of measures that are merely non-binding expressions of congressional opinion. Yet the resolution has been all but lost to history.

This is unfortunate. The resolution was the product of what has been called “the last great Senate.”Footnote ²⁵ The Senate of the late 1960s and 1970s was distinguished both in the eminence of its members and in their willingness to confront deeper structural problems inhering in the exercise of the war power, treaty power, appropriations power, and intelligence oversight. It was comprised of household names in their time: Fulbright, Robert Byrd, Walter Mondale, Jacob Javits, Mike Mansfield, George McGovern, Edmund Muskie, Stuart Symington, John Sherman Cooper, Mark Hatfield, Frank Church, Charles Percy, Edward Kennedy, Wayne Morse, Sam Ervin, Tom Eagleton, and Daniel Inouye, among others. They dealt purposefully with nerve-center foreign policy issues such as the Panama Canal Treaties, the SALT II Treaty, the normalization of relations with China, unchecked intelligence services, Vietnam, Watergate, and other questions of serious national import.Footnote ²⁶

In considering the making of national commitments, the Senate attempted to identify the reasons that its powers had atrophied, and it spelled out specific steps needed to guard against the further loss of congressional power, laying the groundwork for legislation that would be enacted over the next decade to reclaim those powers. The great congressional initiatives of the 1970s aimed at restoring core legislative foreign affairs powers—the War Powers Resolution,Footnote ²⁷ the Case-Zablocki Act,Footnote ²⁸ the International Emergency Economic Powers Act,Footnote ²⁹ the Congressional Budget and Impoundment Control Act,Footnote ³⁰ the Arms Export Control Act,Footnote ³¹ the Trade Act of 1974,Footnote ³² the Foreign Intelligence Surveillance Act,Footnote ³³ the Hughes-Ryan Amendment,Footnote ³⁴ and other laws—all trace their origins to the awareness of withering congressional foreign affairs powers highlighted initially by the National Commitments Resolution.

Ultimately, as evidenced by the ease with which these legislative measures have been evaded by successive presidents, the effort to recapture lost powers was largely ineffectual. It is striking that even this remarkable Senate, proceeding in the most propitious circumstances and riding the waves of the Civil Rights Movement, Watergate, and Vietnam against resistance by two unpopular presidents, still could not devise survivable bulwarks to safeguard legislative power. Why that reclamation failed holds important lessons for contemporary legislators attempting to do the same. One lesson is that, notwithstanding all the remedial legislation, the same corrosive forces that had earlier hollowed out Congress’s war powers will continue to eat away at any attempted restoration. Some of these forces were identified in the Committee’s report.

The Committee believed that three factors drove the atrophy of Congress’s war power. First, “[t]he principal cause of the constitutional imbalance,” the Committee suggested, “has been the circumstance of American involvement and responsibility in a violent and unstable world.”Footnote ³⁵ Congress has acquiesced in executive incursions upon its powers because it was unfamiliar with this deep involvement throughout “a series of crises” and “global commotions,” to which “[t]here is no end in sight.”Footnote ³⁶ Second, members of Congress had been fearful of being labeled isolationists. Congressional acquiescence was fed by a lingering guilt over rejection of the Covenant of the League of Nations, with the result that “Congress has been doing a kind of penance for its prewar isolationism.”Footnote ³⁷ Third, in an early recognition of the influence of “The Blob,” the Committee suggested that Congress had been “overawed by the cult of executive expertise” and the “veritable army of foreign policy experts that has sprung up in government and in universities[.]”Footnote ³⁸ Together, these forces impelled the United States “toward the concentration in its national executive of unchecked power over foreign relations, particularly over the disposition and use of the armed forces.”Footnote ³⁹

To correct this imbalance, the Committee recommended four steps in considering future resolutions involving the use of force. First, Congress should debate the resolution at sufficient length to establish a record of its intent. Second, it should use the word “authorize” or “empower” to make clear that Congress is conferring power that the executive would not otherwise have. Third, it should explicitly specify the kind of military action that is permitted and the place and purpose of its use. And fourth, it should put a time limit on the resolution.Footnote ⁴⁰

Subsequent military actions suggest the far-sightedness of these recommendations, but also their limited breadth. For example, the Authorization for the Use of Military Force (“AUMF”) enacted on September 18, 2001, following the attacks on the Twin Towers, did use the word “authorize.”Footnote ⁴¹ However, it was enacted with virtually no debate in either House of Congress. It placed no limit on the kind of military action that was permitted. It did not identify the specific entity against which force could be used, or the place or purpose for which force was permitted. It set out no time limit. As a consequence, the AUMF has been dubiously cited numerous times by the executive as a source of authority for subsequent military actions across twenty-two countries, including the campaign against ISIS, the leadership of which had actually been hostile to those who plotted the September 11 attacks.Footnote ⁴² Had the Committee’s 1969 recommendations been followed, such claims would likely have been unsupportable.

On the other hand, because the executive argued that the use of force against Iran, Libya, and the Houthis had been authorized by the Constitution rather than by statute, the Committee’s proposed remedies were irrelevant to those attacks. The Committee provided no guidance as to how Congress should proceed in circumstances where the president claims contestable constitutional authority. It observed simply that “[i]t is obvious that the question of authority to commit the United States to war is in need of clarification.”Footnote ⁴³

Subsequent efforts to do so, however, have repeatedly failed.Footnote ⁴⁴ This includes, most notably, the War Powers Resolution.Footnote ⁴⁵ It provides no ex ante limits concerning when armed force is permitted.Footnote ⁴⁶ Provisions of the War Powers Resolution that would have limited statutorily unauthorized use of force were dropped in conference; the version that emerged merely imposed a sixty-day time limit to conclude “hostilities” and a requirement to report any such hostilities to Congress within forty-eight hours of their occurrence.Footnote ⁴⁷ In the face of this gap, following the attack on Iran, Senator Tim Kaine introduced a joint resolution that would have prohibited the president from doing so again without congressional approval.Footnote ⁴⁸ It was, however, defeated on the Senate floor (and, because a joint resolution is presented to the president for signature or veto, would surely have been vetoed had it been enacted).Footnote ⁴⁹

An additional factor, which materialized after the resolution’s consideration, is Supreme Court precedent and practice. A single case, INS v. Chadha, has been uniquely responsible for thwarting congressional efforts to curb the unauthorized use of U.S. armed forces in hostilities of the sort that occurred in Iran.Footnote ⁵⁰ It held that to have the force and effect of law, a measure must be presented to the president for his signature or veto.Footnote ⁵¹ A national commitment thus could no longer be approved, as the Committee had suggested it could, by concurrent resolution (that is, by a resolution adopted by both Houses of Congress but not so presented). Nor could Congress disapprove executive action by concurrent resolution. This would constitute a “legislative veto,” and was henceforth unconstitutional. The 1973 War Powers Resolution provided for a legislative veto, arguably its most significant limit: Section 5(c) required the president to remove the armed forces from hostilities when Congress so directs by concurrent resolution.Footnote ⁵² Had the Court not invalidated the procedure, and had Senator Kaine and his allies used a concurrent resolution under the Section 5(c) procedure rather than a joint resolution, they would not have confronted the insurmountable obstacle of a Trump veto. (Representatives Thomas Massie and Ro Khanna, perhaps hopingFootnote ⁵³ that Chadha would be overruled or that it might be distinguished as inapplicable to the resolution’s concurrent resolution procedure, introduced a concurrent resolution under Section 5(c) that would have required the termination of hostilities against Iran,Footnote ⁵⁴ but it was not brought to a vote.)Footnote ⁵⁵

That such legislative machinations would be necessary to halt or prevent a war would have astonished the framers. In 1789, presidential action such as the attack on Iran would have been impossible for practical reasons. “In the earl[iest] years of the Republic,” as Michael McConnell has pointed out, “the United States had only a miniscule standing army …. [I]f the president wished to take the nation to war, he had to go to Congress not just for a declaration, but, more importantly, for an appropriation that would raise a fighting force.”Footnote ⁵⁶ As a consequence, when President John Adams wished to engage in hostilities with France, he “went hat in hand to Congress to pass legislation creating a 10,000 man army for that specific purpose.”Footnote ⁵⁷

No longer does that practical check exist, of course. Multi-year appropriations for the military and massive standing armed forces made it possible for a president to fight a war in Libya for eight months without specific appropriations for that purpose,Footnote ⁵⁸ or to bomb Iran with no specific appropriation. Congress’s only check is now to enact legislation cutting off funds for war-fighting—with a two-thirds majority, overriding a presidential veto, thus inverting the framers’ original scheme by making it more difficult to get out of war than into one. Significantly, no member of Congress resorted to the courts to stop action against Iran, perhaps because of the futility of such efforts in earlier conflicts.Footnote ⁵⁹ The Committee, in drafting its report on the National Commitments Resolution, had not foreseen that judicial deference would become judicial submissiveness when it comes to enforcing the Constitution’s most consequential check on executive power.

Two additional causes of the transfer of the war power from Congress to the president were unforeseen by the framers. They relate to the war power directly and to congressional power in general. Each goes to the heart of James Madison’s theory that equilibrium can be maintained, and encroachments on the power of one branch by another can be remedied, by pairing rival motives against each other.

The first is political parties.Footnote ⁶⁰ When Madison extolled the benefits of setting ambition against ambition in The Federalist 51, political parties had not yet emerged. Madison and Jefferson’s democratic-republican party did not begin to take shape until three years later, in 1791, with their famous botany expedition to New York. Parties made it possible to advance political careers not by standing up for the institutional prerogatives of Congress but by abandoning them—by trading favors with party members in the executive branch. In the unanticipated political order that emerged, public officials were sometimes energized by an ambition to resist encroachments on their own institutional prerogatives, but they were possessed of other ambitions as well. They had ambitions for their political party to succeed, for their careers to progress, and for their policies to be adopted. Party, career, and policy ambitions often align with, rather than clash with, the ambitions of executive officials who seek to encroach upon Congress’s constitutional prerogatives. Representative Massie, in opposing the Iran attack, thus stood alone in the Republican House caucus in facing the wrath of a president whose response to his opposition was a promise to “primary” him in the next election.Footnote ⁶¹ In the 2025 House of Representatives, party and career ambitions had come to prevail over institutional ambitions. Rather than producing an equilibrium of power, the prevailing party system produced disequilibrium.Footnote ⁶²

Second, legions have now been added to the army of foreign policy experts who occupied a commanding position fifty years ago.^{Footnote 63} It was even then the rare member of Congress who was not “awed” by it, as the Committee said, and the rare member who would question its counsel or vote against its wishes, particularly when dominant elements within it aligned with the interests of a politically powerful ally such as Israel. Predictably, Senator Kaine’s effort to prohibit an attack on Iran was defeated on the Senate floor.Footnote ⁶⁴ This bureaucracy—or Blob, or “security state,” or “deep state,” as some have called it (or “double government,” as I have referred to it)—resists the Committee’s diagnosis at a deeper level. The bureaucracy-dominated foreign policy of the United States has, through multiple presidencies in recent years, often been directed not at the domestic objective of securing democratic values such as separation of powers and freedom of speech but at maintaining U.S. primacy in its dealings abroad,Footnote ⁶⁵ to the point that NATO’s secretary general could openly remind President Trump, without contradiction, that the United States is now the “police agent of the world.”Footnote ⁶⁶

Why military preeminence is required, rather than a simple sufficiency of power, has never been clear. Because not every nation welcomes U.S. dominance and the coercion needed to secure it,Footnote ⁶⁷ this aspiration has led to a series of forever wars aimed, ultimately, at maintaining American supremacy, which has in turn incentivized not the domestic protection of political pluralism but its suppression. Modern-day censorship of unfavorable war reportage traces directly to the United States’ earliest dalliance with colonialism;Footnote ⁶⁸ it is no surprise that each of the six episodes in which the United States government “attempted to punish individuals for criticizing government officials or policies” all involved war or fear of war.Footnote ⁶⁹ The quest for primacy provokes war, war provokes resistance, and resistance provokes repression.

The Foreign Relations Committee, analyzing the reasons for the demise of Congress’s war power in its National Commitments report, recognized the impact of “global commotions” yet tiptoed around the disquieting possibility that the United States has assumed a role in the world that is irreconcilable with a constitutional order grounded on pluralistic decision making and buttressed by political and civil liberties. But the Committee warned against such a role. It said:

The open question is whether the way in which we have been deciding to use armed force, and the reasons we have used it, have damaged processes of U.S. constitutionalism beyond repair, or whether the United States has the discipline to adopt a restrained role in the world compatible with a government of shared powers. It will be said that a policy of restraint would mark “the escalating retreat from its role of global policeman” and “foster instability and conflict.”Footnote ⁷¹ But the United States has never been the global policeman. A policeman does not enforce rules for his own personal benefit; he enforces rules for the benefit others. The U.S. government typically sells foreign military intervention to the American public as advancing this nation’s vital national security interest, not the interests of other nations let alone a vague, undifferentiated global interest.

Moreover, instability and conflict have more often been triggered in recent years not by U.S. restraint but by U.S. interventionism. Interventionism, and the efforts at large-scale social engineering that generally accompany it, incentivize repression not only at home, as noted above, but within target states where harsh measures are needed to control nationalistic backlash. It sparks destabilizing refugee flows, polarizing job loss, and embittering income inequality. To deal with such consequences, interventionism necessitates expanded international authority, leading to resentment at a loss of sovereignty and giving people “the sense that foreign forces are controlling their lives.”Footnote ⁷² It is understandable why the United States’ European allies would favor returning to a U.S. neo-imperialism aimed at imposing western liberal precepts worldwide; John Mearsheimer has written that a liberal international order can be sustained only if it is led by a liberal hegemon in a unipolar world.Footnote ⁷³ But America’s unipolar moment is over. Restoring that world, even if it were financially and militarily possible, would require traducing liberal values at home for the purpose of promoting those values abroad, with uncertain results. For Americans, a more sensible effort would be aimed at restoring pluralistic decision-making domestically in realms such as war powers and bolstering the protection of individual rights such as freedom of speech—unless, as the Committee said in its National Commitments report, “it is believed that a government of limited and divided powers is no longer feasible, or no longer desirable, insofar as foreign relations is concerned.”Footnote ⁷⁴ In that case, even if it could be established, it is open to doubt whether an international order that the United States might ordain would be led by a liberal hegemon. “[T]he price of empire,” as Fulbright warned, “is America’s soul and that price is too high.”Footnote ⁷⁵