For the second time in under a year, U.S. President Donald Trump has launched strikes against Iran without presenting the pluses and minuses of another war in the Middle East to the American people. The joint U.S.-Israeli attacks, which killed Supreme Leader Ali Khamenei along with several other senior Iranian officials, come in the wake of not just a U.S.-Israeli bombing campaign against Iran in June 2025 but also a series of U.S. strikes on boats said to be trafficking drugs in the Caribbean and the U.S. operation to capture Venezuelan President Nicolás Maduro—none of which received congressional approval.
It is hardly surprising that an American president who has taken the assertion of executive power to new and dangerous places in domestic politics feels emboldened to act unilaterally in the realm of national security and foreign affairs. But Trump’s actions, unparalleled in their brazen transgression of legal norms, do not represent a complete break from tradition. Trump has been enabled by decades of bipartisan practice that has insulated presidential decision-making on the most lethal and consequential actions the United States can take from scrutiny or accountability.
In word and deed, senior members of Trump’s cabinet have expressed outright contempt for the legal guardrails against the use of force. Trump’s powerful deputy chief of staff, Stephen Miller, dismissed international law as “niceties” in a world governed by “strength . . . force . . . and power.” Vice President JD Vance labeled the 1973 War Powers Resolution, Congress’s Vietnam War–era effort to reclaim its constitutional war-making prerogatives, as “fundamentally a fake and unconstitutional law.” Yet those guardrails had been weakened before Trump returned to office. Some of the very national security lawyers who find so much to (legitimately) criticize in Trump’s current actions are responsible for chipping away at the laws and norms that constrain presidential power, and thereby for setting the stage for Trump’s unilateral rampage.
For decades, national security lawyers in Democratic and Republican administrations have developed and defended aggressive legal interpretations that preserve space for presidents to wage elective, nondefensive war. I saw and participated in this steady shading of legal precedent during my time in the State Department’s legal office dealing with political-military affairs in the administrations of Presidents George W. Bush and Barack Obama. The resulting consolidation of U.S. war powers undercuts a constitutional design intended to force deliberation and encourage prudent war-making, and it puts the destructive power of the world’s most powerful military in the largely unaccountable hands of whoever occupies the Oval Office. Undoing the damage will not be easy. It will require the legal community to confront its own complicity and join with legislators to help restore Congress’s power on matters of war and peace.
YOU CAN JUST DO THINGS
In weighing the legality of any use of force, national security lawyers focus on three broad questions. One is whether an operation was legitimately taken in self-defense; if the United States faces an armed attack or is threatened with imminent attack, the U.S. Constitution and the UN Charter give the president unilateral authority to respond with necessary and proportionate force. A second arises if the United States uses force in the absence of such an attack or threat. In that case, lawyers will want to know whether the use of force has been duly authorized by the U.S. Congress or, internationally, by the UN Security Council or the country where U.S. force is deployed. A third line of inquiry concerns how war is conducted: whether U.S. forces have acted in accordance with the Geneva Conventions and related rules prohibiting the targeting of civilians and the killing or abuse of soldiers who have left the fight because they have been captured, wounded, or shipwrecked.
The Trump administration has tested these rules and norms in multiple ways. Whereas other U.S. presidents have usually taken care to at least pay lip service to the post–World War II prohibition against the use of aggressive military force, inscribed in the UN Charter and widely seen as the crown jewel of the international legal order, the current administration appears to long for the return of an international order in which war was routinely used as an instrument of statecraft.
The administration has provided the thinnest veneer of justification for the boat strikes in the Caribbean it has has carried out since September 2025. According to The New York Times, a nonpublic opinion authored by the Justice Department’s powerful Office of Legal Counsel accepted at face value Trump’s claim that the United States and several drug cartels were engaged in a “noninternational armed conflict.” From there, the office reasoned that drug cargoes are “war-sustaining objects,” and that the alleged smugglers are “directly participating in hostilities.” If wielded in good faith and in a military context, these legal terms can justify the use of force. But efforts to apply them to drug smuggling, in effect making an argument by metaphor, could set a precedent for the use of force to meet an endless array of policy challenges.
Trump’s cabinet has expressed outright contempt for the legal guardrails against the use of force.
The administration’s confusingly written rationale for the military operation to extract Maduro offered another dubious legal justification. Waving away international law as irrelevant based on the unsound claim that it “does not restrict the president as a matter of domestic law,” it argued that using force to apprehend Maduro would serve an important national interest because of the Venezuelan president’s “severe” and “dangerous” criminal and noncriminal activities, and that the operation would not rise to the level of what the Constitution considers to be a war.
Nor has the Trump administration has shown any inclination to recognize, much less honor, international law or the war powers that the Constitution grants Congress in its strikes on Iran. It executed Operation Midnight Hammer, which targeted Iranian nuclear facilities, in June without a credible self-defense justification or congressional authorization, even though the operation threatened regional stability and risked reprisals against U.S. and allied troops and bases.
The escalatory risks of the June operation pale in comparison with what the United States and Israel set in motion on Saturday with Operation Epic Fury, another war of choice. The massive air campaign, designed to decapitate the Iranian government’s leadership and destroy the country’s military, was all but guaranteed to provoke an Iranian response that would put American troops and assets in danger and drag U.S. allies and partners into the war. Washington’s goals for the war remain unclear—in large part because, beyond a desultory consultation with senior legislators, the administration has once again gone around Congress.
EXECUTIVE LAWFARE
On paper, Article 1 of the Constitution grants Congress the power to declare war, and Article 2 gives the president the power to wage it as commander in chief. In practice, presidents have long tested what they can do without congressional approval. The modern boundaries were set by a series of Office of Legal Counsel opinions dating back to the 1990s, when Clinton administration lawyers attempted to define limits on presidential war powers while approving unilateral uses of force in Bosnia, Haiti, and Kosovo. According to executive branch interpretation that grew out of those and subsequent opinions, the president’s unilateral war powers extend not only to actions required for self-defense but also to actions in the “national interest” (a nebulous and low standard), as long as they do not amount to “war in the constitutional sense” (a nebulous and high one).
As if those porous standards did not create enough room for maneuver, several extreme Justice Department opinions have created more. During the administration of President George W. Bush, the Office of Legal Counsel asserted that the president had the right to invade Afghanistan in 2001 and Iraq in 2003 without congressional authorization because of the threat posed by terrorism and by weapons of mass destruction, respectively. (Bush sought and received congressional approval anyway.) A 1989 opinion enabled President George H. W. Bush’s administration to snatch Panamanian leader Manuel Noriega, effectively granting the president permission to violate international law in order to conduct law enforcement operations on another country’s territory. The Trump Justice Department cited that opinion as part of the legal justification for the military operation to capture Maduro in January. These opinions were all authored by Republican administrations, but no Justice Department in a Democratic administration has withdrawn them, even though they have been widely criticized.
While working to expand the president’s powers, executive branch lawyers have also worked to shrink Congress’s. They have done this in part through a narrow reading of the War Powers Resolution of 1973, in which Congress sought to reclaim powers it had lost over the course of the Korean and Vietnam Wars. Among other things, the resolution put a 60-day limit on unauthorized presidential war-making, after which the president must end U.S. involvement in “hostilities” if Congress has not given its blessing. The law also empowered Congress to end wars with a resolution passed by both houses that does not require the president’s signature.
Presidents have long tested what they can do without congressional approval.
Over the decades, this safety mechanism has been eroded beyond all recognition by judicial decisions, creative executive branch lawyering, and congressional passivity. In 1983, the Supreme Court’s ruling in INS v. Chadha invalidated the use of bicameral war powers resolutions to bind the president. President Ronald Reagan’s administration insisted that U.S. strikes against Iranian ships and oil platforms in the so-called tanker wars of 1987 and 1988 were discrete events, allowing it to reset the War Powers Resolution’s clock before ever reaching the 60-day limit on unauthorized war-making. The Obama administration argued that the sorties that the United States continued to conduct over Libya well after the 60th day of the U.S. military intervention there in 2011 did not count as conducting “hostilities.” The Biden administration claimed that it was not triggering the resolution in its 2024 strikes against the Houthis because the naval vessels it had placed between Yemen and Israel were, as U.S. officials must have surely expected, attacked first by the Houthis. The administration answered the Houthis attack with a yearlong bombing campaign in Yemen, its lawyers contending that the Houthis’ initiation of hostilities made congressional authorization unnecessary. The net effect of these actions has been to render the War Powers Resolution, in the words of the legal scholar Jack Goldsmith, “Swiss cheese.”
Further limiting the reach of the War Powers Resolution, every administration since George W. Bush’s has relied on implausibly expansive readings of the 2001 Authorization for Use of Military Force, passed by Congress after the September 11 attacks, to encompass activities that lawmakers could not have contemplated at the time. That the AUMF expressly limited U.S. military action to groups with specific links to the 9/11 attacks (primarily al-Qaeda) did not stop Bush and Obama administration lawyers from stretching it to cover “associated forces” that had nothing to do with the attacks and in some cases did not exist when they occurred. Obama’s lawyers, for example, read the statute to include operations against the so-called Islamic State (or ISIS), a splinter group that had broken with al-Qaeda. Although Trump did not detail the legal basis for a strike against Nigerian jihadists in December 2025, his administration identified the targets as affiliated with the Islamic State, implying that it, too, was relying on the AUMF.
Rather than allowing the executive branch to treat the AUMF as a seemingly endless justification for military force, Congress and the courts (which wrestled with the statute in the context of detainee litigation during the global war on terror) could have insisted that presidents request additional authorization to target groups not credibly covered by the original statute. Each proposal then could have been scrutinized and debated, and perhaps made subject to temporal and geographic limits. Instead, the courts largely deferred to the executive branch, and Congress greenlighted appropriations legislation, giving the White House an effective rubber stamp. The Trump administration does not appear inclined to look to the 2001 authorization as the basis for the latest Iran strikes; instead, it has gestured toward a thinly substantiated self-defense rationale. But congressional and judicial atrophy has accustomed the public to an almost monarchical war-making process, smoothing the path for any executive justification.
STOP THAT MAN
Even seemingly promising efforts to check the executive branch have failed. From 2004 to 2008, the Supreme Court issued a series of opinions refusing to endorse the Bush administration’s argument that no U.S. court could review the legality of detention operations at the U.S. military prison at Guantánamo Bay in Cuba, where the administration had begun sending terrorism suspects after the 9/11 attacks. But having preserved the right of courts to examine the legality of holding detainees at Guantánamo without charge, the justices declined to give lower courts any substantive guidance on who could or could not be held. In doing so, they kicked questions about who could be detained as a combatant, and therefore who could be killed as one on the battlefield, down to the lower courts.
When the Obama administration came into office in 2009 promising to close Guantánamo within a year, it faced a decision: how far should it go in asserting the right to continue holding detainees, some of whom had at best highly tenuous links to al-Qaeda or 9/11? The administration ultimately decided to go all-in. Deferential judges played along, endorsing the indefinite detention of individuals on the basis of sometimes flimsy evidence of ongoing membership in al-Qaeda or an associated force. These decisions gave a judicial imprimatur to ever-broader assertions by the military on who could be killed or detained under the AUMF, not to mention prolonging the detention of men the administration eventually intended to free.
The Obama administration could have been more discriminating about what detention cases it chose to defend before the courts, to avoid having to assert uncomfortably broad authorities. It could have asked Congress for a revised AUMF that matched its operational needs instead of stretching an increasingly outdated statute. But the administration worried about appearing soft on terrorism and about the prospect of Congress providing an even broader authority (and then criticizing the administration for not expanding the “war on terror”) if asked to rewrite the AUMF. In its effort to avoid political pitfalls, the administration created the impression inside the executive branch that “creative” lawyering was a valued way to work around Congress. Even as it tried to project respect for the rule of law, from the outside the administration appeared to be treating legal limitations on the use of force as malleable.
Even seemingly promising efforts to check the executive branch have failed.
Things have hardly gotten better since. Drawing on the same logic as the Obama administration’s unauthorized Libya campaign, the first Trump administration struck Syria twice without congressional approval in 2017 and 2018. Despite having co-authored a scholarly article in favor of war powers reform as a senator in 1988, Joe Biden did nothing to meaningfully advance a reform agenda as president, while engaging in an unauthorized conflict with the Houthis. When Trump returned to office in 2025, the guardrails were arguably in worse condition than when he left in 2021.
Congress did not have to acquiesce to this degradation of its authority. It could have refused to appropriate funds for wars it had never authorized, or pursued oversight hearings with much greater vigor. It could have pushed through reform legislation to tighten the War Powers Resolution and the AUMF, expecting a veto but forcing the White House to bear the costs, and then incorporated elements of the original reform into must-pass legislation such as the annual defense authorization bill.
Instead, legislators have tended to focus on disapproval resolutions fast-tracked under the amended War Powers Resolution to demand an end to hostilities, knowing that any resolution that reaches the president will be vetoed before it can ever become law, and that a veto-proof supermajority is nearly always unattainable. There are currently pending resolutions in the Senate and House of Representatives. These votes can carry some weight (one such resolution seemingly helped soften the first Trump administration’s support for the Saudi-led coalition military campaign in Yemen), but are fundamentally toothless as a practical matter. If Congress wants the executive branch to involve it in decisions about war-making, it cannot wait until U.S. planes have already begun dropping bombs.
FIGHT THE POWER
Despite widespread acknowledgment by legal experts that the consolidation of war powers in the U.S. presidency defeats a constitutional design intended to cushion the risk of imprudent war making, there is no consensus on what to do about it. Some experts prefer to accept the steady drift of power into the president’s hands on the ground that in a dangerous world the U.S. government doesn’t have the luxury of long debates over when and whether to use force—or because an empowered Congress could deliberately withhold war authorization to harm the president politically or use expansive authorizations to pressure the president into more hawkish positions.
Yet preserving a status quo in which any U.S. president can launch a nondefensive war with Iran without having to sell it to Congress or the American people is much worse. No legal or technocratic fix can force the United States to make better foreign policy choices. Some of the country’s biggest strategic disasters since World War II were at least partly authorized by Congress: the Vietnam War, authorized by the 1964 Gulf of Tonkin Resolution, and the 2003 invasion of Iraq, authorized by a 2002 AUMF. Yet the point of forcing the president to come to Congress isn’t to guarantee good outcomes. It is to produce debate, insert a speedbump on the way to elective war, and require elected representatives to take a stand for which they will be judged at the ballot box. It is a way to ensure that Washington learns from its mistakes.
Rebuilding such a system will require a joint effort by legislators and an executive branch more amenable than the Trump administration to giving back some of its power. Congress should push to restore and strengthen the 1973 War Powers Resolution. Before Trump’s reelection, both the Senate and House were considering such legislation. The Senate’s National Security Powers Act, and a nearly identical bill in the House, the National Security Reforms and Accountability Act, would close many of the gaps in the current legislation. It would supply definitions for terms such as “hostilities” and the “introduction” of forces, making it harder for executive branch lawyers to argue that lethal military operations do not trigger the resolution. It would shorten the 60-day authorization window to 20 days to discourage presidents from thinking that they can begin and end a war quickly enough to skirt the need for congressional approval. And it would cut off funding for unauthorized wars that continue past their deadlines.
Trump’s transgressions do not let a generation of lawyers, lawmakers, and judges off the hook.
Something also needs to be done about the 2001 AUMF. To continue to rely on it, the executive branch should be required to demonstrate before Congress that the statute serves a vital counterterrorism function. If that case is not convincing, the authorization should be repealed. If it is, it should be replaced with a more narrowly tailored statute that requires specifying the groups against whom the U.S. is waging war and identifying the places where that war can be waged. It should also stipulate that separate authorizations must be obtained before the U.S. military targets additional groups, whatever their association with the named groups. Any replacement statute, and indeed every war authorization, should include a clause requiring Congress to renew it after two or three years if funding is to continue. That would prevent lawmakers from washing their hands of wars they voted to start and force them to assess the costs and benefits of a conflict as it unfolds.
Finally, the executive branch needs to stop searching for ways to circumvent safeguards on war powers through strained readings of the law. One important step would be to retract Office of Legal Counsel opinions that aggrandize presidential power, such as the 1989 opinion that creates space for presidents to circumvent international law and the 2001 and 2002 opinions that suggest the president can go to war without congressional authorization in situations involving terrorists and weapons of mass destruction.
These changes will not come in time to keep Trump from unilaterally prosecuting a reckless war with Iran. If Congress wishes to rein him in, its best option is to cut off funding, a tall order under any circumstances, and especially given Republican control of both houses. Still, now is the time to begin setting the stage for future reform.
For decades, national security lawyers in administrations of both parties, along with an acquiescent Congress and judicial system, have diminished the safeguards that restrain the use of force, laying the groundwork for a nearly unrestrained president to wield unilateral power over war and peace. Trump’s transgressions may be egregious, but that does not let a generation of lawyers, lawmakers, and judges off the hook. Reform remains possible, but only if those responsible for tearing down legal guardrails through years of short-sighted decisions and weak stewardship commit to putting them back up.
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