While a bipartisan group of lawmakers readies a vote requiring President Donald Trump to cease military hostilities in Iran, House Speaker Mike Johnson is arguing that a primary tool to assert congressional involvement in war-making decisions is actually unconstitutional.
“Many respected constitutional experts argue that the War Powers Act is itself unconstitutional. I’m persuaded by that argument,” Johnson told reporters Tuesday morning. “They think it’s a violation of the Article II powers of the commander in chief. I think that’s right.”
That debate has gone unsettled since 1973, and it probably won’t be answered any time soon — unless lawmakers do pass an Iran war powers resolution in both chambers and the matter escalates to the Supreme Court.
“The executive branch has always felt that way,” Rep. Michael McCaul, a Texas Republican, told NOTUS of the broader view that Congress can’t constrain the president’s military decisions.
“But we do have the power to declare wars,” he said. “That’s kind of the inherent conflict in the Constitution that I think the War Powers Act was trying to reconcile. Is it perfect? No. It’s not. I do think because we have the power to declare war, we should have a role, and it does provide that avenue.”
“If it went to the Supreme Court?” McCaul said of the war powers resolution, “I don’t know.”
Rep. Thomas Massie, a Kentucky Republican, is working with Rep. Ro Khanna, a California Democrat, on the resolution, which would require Trump to cease hostilities absent a vote approving military involvement from Congress.
“Congress has the sole power to declare war under article 1, section 8, clause 11 of the United States Constitution,” the resolution reads. “Congress has not declared war with respect to, or provided a specific statutory authorization for, hostilities involving United States Armed Forces against the Islamic Republic of Iran.”
Massie on Tuesday acknowledged the legal questions surrounding just how far a president can go in war without congressional approval — and how far lawmakers can go to rein in a president — haven’t been totally tested. He noted that even if his resolution fails, the 1973 War Powers Act requires presidents to get approval from Congress within 60 days of entering hostilities abroad.
“There’s multiple ways to test this,” Massie said. “Either the president can go past 60 days and keep waging war, or we could get a resolution passed.”
“It’s never been tested,” he said.
It’s not clear if Johnson on Tuesday was also questioning whether the 60-day requirement is constitutional. A spokesperson for the speaker didn’t respond to a question about his position.
“If he’s saying that a president doesn’t have to come to Congress within 60 days of entering hostilities, then he is out on a limb and saying something that has never been tested,” Massie said. “Not in either the Iraq war or Afghanistan war.”
Congress hasn’t officially declared war since World War II, but members have approved authorizations for the use of military force in the past — a more targeted legal mandate for wars abroad. Presidents from both parties have routinely relied on authorizations that are more than two-decades old for strikes abroad as part of conflicts against terror groups.
Rep. Don Bacon, a Nebraska Republican and Air Force veteran, said “some people do” believe the war powers resolution is unconstitutional, “but it is the law.”
“It is the law right now,” he said.
Bacon argued Trump’s strike complied with it regardless, because he spoke with some congressional leaders before and right after the attack on Iranian nuclear facilities. “He talked to the leadership,” Bacon said.
And Rep. James Comer, a Kentucky Republican, dismissed the debate: “If we go to war, then Congress has to decide that,” he told NOTUS. “But I don’t view what Trump did as an act of war.”
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Haley Byrd Wilt is a reporter at NOTUS.