Published on
Thomas A. Briner*
I. Introduction
The War Powers Resolution is a one-of-a-kind Congressional enactment. The infamous legislation was enacted in 1973.[1] The Resolution requires the President of the United States to abide by certain requirements imposed by Congress when taking military action.[2] Since its enactment, presidents have abided by some of its requirements and blatantly ignored others.[3] Some view it as a toothless document.[4] Others argue that it provides a necessary check on the otherwise unbridled power of the president to wage war.[5]
The War Powers Resolution has found its way into the news cycle in recent months in connection with President Donald J. Trump’s war with Iran. Some members of the United States House and Senate have attempted to advance resolutions that would halt the United States’s military action against Iran.[6] Ultimately, Congress has not been able to get anything across the finish line.[7] But what if they had? What would the effect have been? Would President Trump have been forced to cease all military operations in Iran?
The answer to that question is likely no. This article argues that for better or for worse, Congress likely does not have the power to prevent the president—in his executive authority—from conducting foreign military operations, making the War Powers Resolution a document that is only worth the paper it is printed on. There are two main reasons for this: first, the Resolution—at least in part—is likely unconstitutional; and second, the Supreme Court would likely find that the Resolution presents an unjusticiable political question. Therefore, the War Powers Resolution is at a minimum very likely unenforceable, if not unconstitutional altogether.
II. Legal Background
A. What is the War Powers Resolution?
The War Powers Resolution was enacted in 1973 over the veto of then-President Richard Nixon.[8] The Resolution was apparently an attempt by Congress to claim or reclaim its authority to determine if and when the United States engages in international armed conflict.[9]
The Resolution came in the aftermath of the United States’s involvement in the Vietnam War,[10] a conflict in which American troops participated actively in combat for more than seven years.[11] At home, the United States’s involvement in the Vietnam War was widely viewed as a disaster.[12] Notably, Congress never issued a declaration of war against Vietnam.[13] Nonetheless, more than 2.5 million Americans served in Vietnam and more than 58,000 gave their lives.[14]
Just over thirty years earlier, President Franklin D. Roosevelt had taken a much different approach at the outset of World War II.[15] Although President Roosevelt favored joining Britain and other Allied nations in the fight against the Nazis, American sentiment strongly disfavored the United States’s involvement in the fighting.[16] Thus, President Roosevelt declared the United States an “arsenal of democracy” and began supplying weapons to Britain,[17] but he ultimately refused to involve the United States in active combat until Congress gave its permission by declaring war following Pearl Harbor in 1941.[18]
By 1973, Congress had seen its power and control over the United States’s involvement in foreign wars dwindle into oblivion in just a few decades. Congress, of course, wanted to regain that deference it had once received from presidents. Thus, the War Powers Resolution was passed.
The War Powers Resolution has several sections that outline different requirements and procedural guidelines. Section 2 states that the president may use military forces under three different circumstances: a declaration of war, specific statutory authorization (known as an “authorization for use of military force” or “AUMF”), or during national emergencies.[19] Section 3 requires that “[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities.”[20] Section 4 requires the President to make reports to Congress anytime the military is used without a declaration of war.[21] Section 5(b) provides for a sixty-day window at the start of American involvement in hostilities in which Congress may declare war itself or extend the period by law.[22] If neither of these provisions from Section 5(b) are satisfied, and there is no direct attack on the United States, the president must withdraw any troops involved in combat.[23] This period may be extended for thirty days based on a showing of need by the president.[24] Section 5(c) gives Congress the authority to pass a resolution requiring the removal by the president of any troops engaged in hostilities outside the United States notwithstanding Section 5(b).[25] Sections 6 and 7 provide procedural guidelines for Congress to pass bills and resolutions pursuant to Section 5.[26]
Ultimately, the requirements of the War Powers Resolution can be generally categorized into two broader groups: (1) presidential reporting and consultation requirements and (2) Congressional authority over military action. Since its enactment in 1973, the War Powers Resolution has been invoked on a variety of occasions. However, the United States has not declared war since 1941, and the United States has been involved a few protracted armed conflicts since 1973. So how much weight does the Resolution really carry?
B. Pertinent Constitutional Law Doctrines
An examination of a few important constitutional law doctrines provides clarity on the ability of the War Powers Resolution to do what it says it will do. Article II, Section 2 of the United States Constitution designates the president as the Commander-in-Chief of the United States Armed Forces.[27] Under this provision, the president has the authority to conduct and direct military operations, make decisions on strategy, and more.[28] Under Article I, Section 8 of the United States Constitution, Congress has the power to declare war and issue formal authorizations for use of military force.[29] Congress also possesses the power of the purse—meaning that it has the ability to fund wars—and the power to raise armies.[30] Therefore, Congress has the power to initiate, prepare for, and pay for a war, while the president has the authority to carry out the war.[31] There is significant overlap between the authority of Congress and the authority of the president to make war.
Additionally, a strong case can be made that the president has inherent and unilateral authority to deploy troops and respond to threats to the United States without prior approval from Congress.[32] In The Prize Cases, the Supreme Court took a functionalist approach as it held that the president had the authority repel threats to the United States in certain instances without a formal declaration of war from Congress.[33] It remains unclear how far this Civil War-era precedent extends, but it is clear that the president possesses more than simply the authority to carry out a war pursuant to a declaration from Congress.[34]
Another topic related to the enforceability of the War Powers Resolution is the political question doctrine. In 1803, the United States Supreme Court defined the political question doctrine in the landmark case of Marbury v. Madison.[35] Under the doctrine, which has since been further defined, courts will not hear cases when there is a “lack of judicially discoverable and manageable standards for resolving” the issue, and there is a “textually demonstrable constitutional commitment to a coordinate” branch of government.[36] Rather, courts may only make determinations on justiciable “Cases” and “Controversies.”[37] Under this doctrine, the Supreme Court has limited its own authority to hear various types of cases.[38] The apportionment of the war powers is an issue that could conceivably fall under the political question doctrine, meaning that the Supreme Court might refuse to rule on the constitutionality of the War Powers Resolution entirely.
In 1983, the Supreme Court decided Immigration & Naturalization Service v. Chadha,[39] a case that casts substantial doubt on the enforceability of the War Powers Resolution.[40] The Court in Chadha declared what is known as the “legislative veto” unconstitutional for failing to satisfy bicameralism and presentment requirements.[41] The War Powers Resolution gave Congress the ability to use the legislative veto to require the president to withdraw forces.[42] Still, Congress has other avenues under the War Powers Resolution to try and force the president to remove troops that are not so clearly unconstitutional.[43]
Separation of powers is another topic that bears discussion. The purpose of separation of powers is to maintain the balance between the three branches of government—the legislative, the executive, and the judicial.[44] Separation of powers doctrine protects the structure of the governmental system by preventing aggrandizements and encroachments.[45] Aggrandizements occur when one branch expands it authority into the authority of another branch.[46] Encroachments occur when a branch takes action to make the power of another branch smaller or limits the power of another branch to carry out its core duties.[47]
C. How Has the War Powers Resolution Been Used Throughout History?
Despite the United States’s long-term involvement in a variety of military conflicts in the last half-century, Congress has not declared war since World War II.[48] The United States was involved in the Gulf War in the early 1990s, the Iraq War in the 2000s, and the War in Afghanistan for nearly the first two decades of the 2000s, just to name a few.[49] These wars have been viewed with varying degrees of support from Congress and the public at large. So, when and how has Congress or the president used the War Powers Resolution during these conflicts?
Between 1975 and 2019, presidents issued reports pursuant to Section 4(a)(3)—“48-hour reports”—105 times.[50] The purpose of these reports is to identify the circumstances requiring the action, the authority for the action, and the estimated scope and duration of the action.[51] The reports have been used for a variety of purposes.[52] Sixty-six of the 105 reports did not involve active military participation in hostilities.[53]
As discussed above, under the War Powers Resolution, Congress has the power to authorize the president to use force.[54] Congress has granted an authorization for the use of military force—commonly known as an “AUMF”—four times since the passage of the War Powers Resolution.[55] The first AUMF was issued in 1983 in relation to the conflict in Lebanon.[56] The second AUMF was issued in 1991 and allowed the use of force to combat the Iraqi occupation of Kuwait.[57] The third AUMF was issued one week after 9/11 and granted the president broad authority to use military force against anyone who was involved in the terrorist attacks.[58] Finally, the fourth AUMF was issued in October 2002 and authorized the president to defend the United States against threats from Iraq.[59]
III. Discussion
The War Powers Resolution is likely unconstitutional as it pertains to troop withdrawal requirements. At a minimum, it is most likely unenforceable. Even if the Resolution ostensibly serves a legitimate purpose—providing an important check on the authority of the president to conduct unilateral wars—constitutional doctrines and principles likely forbid it, regardless of whether the Resolution and its effects are good policy.
A. The War Powers Resolution is Unconstitutional as It Pertains to Troop Removal Requirements
In enacting the War Powers Resolution, Congress has assumed authority that likely belongs in the hands of the president alone. The power to conduct war is granted to the executive branch in the Constitution,[60] and Congress has aggrandized and encroached on this power through the troop removal requirements of the War Powers Resolution. By taking the authority to determine when and whether United States military action should stop, Congress has usurped the president’s authority as Commander-in-Chief. The president’s authority to respond to threats is an important power that is vested in him alone.[61] Congress may not take that authority for itself. Additionally, Congress has likely encroached on the authority of the executive branch. The War Powers Resolution undercuts the authority of the president. Without the broad authority to conduct military operations, the president lacks the ability to act as Commander-in-Chief.
Additionally, due to the Supreme Court’s invalidation of the legislative veto in INS v. Chadha, the mechanism by which Congress would demand that the president remove troops from hostilities is also likely invalid.[62]
B. The War Powers Resolution is Unenforceable
If the War Powers Resolution is constitutional, it is still very likely unenforceable. Political question doctrine likely prohibits the hearing of the issue. In many situations, the Supreme Court has refused to adjudicate issues involving “political questions.”[63] The Court would likely refuse to do so here again. First, there is a lack of judicially discoverable and manageable standards for deciding this case. The Court would likely find that it had no judicially discoverable and manageable standard to determine what constitutes “hostilities”—the term that triggers the Resolution.[64] Making this determination would also require extensive fact-finding about conflicts that are not occurring on American soil.[65] Additionally, there is a textual commitment to coordinate branches of government because this is a dispute between the legislative and executive branches of government. Finally, Congress would most likely lack standing to challenge the enforcement of the Resolution.[66] The Supreme Court has never adjudicated a case like this one, and it is not likely to ever do so because the Court does not want to—and should not—involve itself in foreign policy and military action disputes. [67]
C. Is the President’s Broad Authority to Wage War Good or Bad Policy?
Even though the constitutionality of the War Powers Resolution does not rest on whether the Resolution is good or bad policy, the merits of the legislation from a policy perspective still bear discussion. As in many areas of law and government, balancing the authority to conduct war is a delicate act. If the president had unilateral, unassailable authority to wage war, there would be little to stop him or her from becoming a warmongering tyrant. This would be an irresponsible balance, especially as the United States’s political landscape has distanced itself from electing military minds as Commander-in-Chief and has instead opted to vest the power of Commander-in-Chief in career politicians and even a reality television star.
Perhaps this is not the way the Framers intended it to be—nine of the first twelve presidents of the United States were military men.[68] Four of those nine reached the rank of General or Major General in either the U.S. Army or other militias.[69] As recently as 1953, the United States elected as president one of its finest military minds: five-star general and World War II hero Dwight D. Eisenhower.[70] Nonetheless, this model of the president seems to have faded away, so limiting the authority of the president to conduct war makes sense, especially when that power may become vested in a person with no military strategy training or knowledge.
However, at least some concentration of authority to conduct military operations is necessary to ensure efficient and successful response to threats to the United States. The United States Armed Forces are not a group that should be led by committee. Forcing the president to jump through Congressional hoops when imminent threats loom could spell disaster for the United States—especially in the current political ecosystem that is so divided along party lines. Additionally, enforcing the War Powers Resolution would likely have a chilling effect on the president. The president would likely be hesitant to take military action for fear of being undercut by Congress—even if that military action was clearly necessary or beneficial.
Thus, the best balance seems to be to give the president broad authority to make war, but to limit it in important ways. The Constitution accomplished this by giving Congress the authority to declare war.[71] Generally, Congress should reflect the sentiments of the American people and a president conducting an unpopular unilateral war will have to pay the price at the polls. The Constitution also grants the power to raise and support armies to Congress alone.[72] This check—which is in line with Congress’ spending power—limits the power of the president to potentially build armies for nefarious purposes but does not hamstring the president’s ability to do what must be done in critical times to respond to threats.
Legislation such as the War Powers Resolution that forces the president to pull out of any hostilities at the whim of Congress would likely serve only to deter the president from taking any action to protect the nation and potentially embarrass the United States on the international stage.
IV. Conclusion
The War Powers Resolution is likely unconstitutional as it pertains to requiring the president to remove troops from military conflicts at the behest of Congress. At a minimum, the legislation seems unenforceable. While the Resolution may seem like a wise check on the executive authority, other more effective checks on the president’s war power already exist. Instead, Congress’ attempt to grab at the power of the president might likely negatively affect the president’s willingness and ability to protect the United States from threats against it.
*B.S.B.A, University of Missouri, 2024; J.D. Candidate, University of Missouri School of Law, 2027; Associate Member, Missouri Law Review, 2025–2026; Associate Editor, Missouri Law Review, 2026–2027. I am grateful to Brooklyn Cross and John Gabriel for their assistance with the editing process.
[1] War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973).
[2] Id.
[3] See Tess Bridgeman, War Powers Resolution Reporting: Presidential Practice and the Use of Armed Forces Abroad, 1973–2019, Reiss Center on Law and Sec. (Jan. 2020),https://warpowers.lawandsecurity.org/findingsandanalysis/.
[4] See Ellen Mitchell, Rubio says War Powers Act ‘100 percent unconstitutional’, The Hill (May 5, 2026, at 18:17 ET) https://thehill.com/policy/defense/5864920-rubio-argues-war-powers-unconstitutional/.
[5] See Stephen L. Carter, The Constitutionality of the War Powers Resolution, 70 Va. L. Rev. 101, 102 (1984).
[6] See Claudia Grisales, House passes war powers resolution directing Trump to end hostilities with Iran, NPR (June 4, 2026, at 08:49 ET), https://www.npr.org/2026/06/03/nx-s1-5845102/house-iran-war-powers-vote.
[7] See Alexander Bolton, Senate fails to advance measure directing Trump to end Iran conflict despite four GOP defections, The Hill (June 16, 2026, at 16:08 ET), https://thehill.com/homenews/senate/5926564-senate-iran-war-powers/.
[8] War Powers Resolution of 1973, Richard Nixon Presidential Libr. and Museum (July 27, 2021), https://www.nixonlibrary.gov/news/war-powers-resolution-1973.
[9] See War Powers Resolution, Pub. L. No. 93-148, § 2(a), 87 Stat. 555 (1973).
[10] War Powers Resolution of 1973, supra note 8.
[11] Ronald H. Spector, Vietnam War, Britannica (May 26, 2026), https://www.britannica.com/event/Vietnam-War.
[12] See id.
[13] Was the Vietnam War technically a war?, Britannica, https://www.britannica.com/question/Was-the-Vietnam-War-technically-a-war.
[14] Vietnam War Statistics, Vietnam Veterans of Am.: Charles S. Kettles Chapter 310, https://www.vva310.org/vietnam-war-statistics.
[15] See Why Didn’t America Join the War Sooner?, Pearlharbor.org (Jan. 19, 2017), https://pearlharbor.org/blog/didnt-american-initially-join-war/.
[16] See id.
[17] See Fireside Chat., The Am. Presidency Proj., https://www.presidency.ucsb.edu/documents/fireside-chat-9 (last visited Jul. 28, 2026).
[18] See Why Didn’t America Join the War Sooner?, supra note 15.
[19] War Powers Resolution, Pub. L. No. 93-148, § 2(c), 87 Stat. 555, 555 (1973).
[20] Id. § 3, 87 Stat. at 555.
[21] Id. § 4, 87 Stat. at 555–56.
[22] Id. § 5(b), 87 Stat. at 556.
[23] Id.
[24] Id.
[25] Id. § 5(c), 87 Stat. at 556–57.
[26] Id. §§ 6–7, 87 Stat. at 557–58.
[27] U.S. const. art. II, § 2.
[28] See id.
[29] See id. art. I, § 8.
[30] U.S. const. art. I, § 8.
[31] See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (distinguishing Congress’s authority to declare war from the President’s authority as Commander-in-Chief to respond to attacks); U.S. const. art. I, § 8; U.S. const. art. II, § 2.
[32] See The Prize Cases, 67 U.S. at 668 (“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”); U.S. Const. art II, § 2.
[33] Id.
[34] Hamdi v. Rumsfeld, 542 U.S. 507, 581–82 (2004) (Thomas, J., dissenting) (explaining that “the President has the authority to ‘employ [the Nation’s Armed Forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy’” (quoting Fleming v. Page, 9 U.S. 603, 615 (1850))).
[35] See generally Marbury v. Madison, 5 U.S. 137 (1803).
[36] Baker v. Carr, 369 U.S. 186, 217 (1962).
[37] U.S. const. art. III, § 2.
[38] See Overview of Rules of Justiciability and Cases or Controversies Requirement, Libr. of Cong.: Const. Annotated, https://constitution.congress.gov/browse/essay/artIII-S2-C1-3-1/ALDE_00001193/ (last visited Aug. 4, 2026).
[39] See generally Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919 (1983).
[40] See Michael J. Glennon, The Court Gutted Congress’s War Power. It’s Time to Give It Back, Just Security (Mar. 23, 2026), https://www.justsecurity.org/133926/congress-war-power-give-back/.
[41] Chadha, 462 U.S. at 957–59.
[42] See War Powers Resolution, Pub. L. No. 93-148, § 5(c), 87 Stat. 555 (1973).
[43] See, e.g., id. § 5(b), 87 Stat. at 556.
[44] See Chadha, 462 U.S. at 945–46; U.S. const., art. I.
[45] Buckley v. Valeo, 424 U.S. 1, 122–23 (1976); Mistretta v. United States, 488 U.S. 361, 381–82 (1989). See also The Federalist No. 51 (James Madison).
[46] See Separation of Powers Under the Constitution, Libr. of Cong.: Const. Annotated, https://constitution.congress.gov/browse/essay/intro.7-2/ALDE_00000031/ (last visited Aug. 4, 2026).
[47] See id.
[48] About Declarations of War by Congress, U.S. Senate, https://www.senate.gov/about/powers-procedures/declarations-of-war.htm (last visited Aug. 4, 2026).
[49] U.S. Periods of War and Dates of Recent Conflicts, Libr. of Cong. (Feb. 5, 2024), https://www.congress.gov/crs-product/RS21405.
[50] Bridgeman, supra note 3.
[51] War Powers Resolution, Pub. L. No. 93-148, § 4(a)(3), 87 Stat. 555 (1973).
[52] Bridgeman, supra note 3.
[53] Id.
[54] War Powers Resolution, Pub. L. No. 93-148, § 2(c), 87 Stat. 555, 555 (1973).
[55] See Congressional Research Service, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications 10–15 (Apr. 18, 2014), https://www.congress.gov/crs-product/RL31133.
[56] Id. at 10–11. Uniquely, this AUMF came with a strict time limit of eighteen months. Id. at 11.
[57] Id. at 12–13.
[58] Id. at 13–15.
[59] Id. at 15–17.
[60] U.S. const. art. II, § 2.
[61] See The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863).
[62] See Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 957–59 (1983).
[63] See, e.g., Luther v. Borden, 48 U.S. 1, 56 (1849); Nixon v. United States, 506 U.S. 224, 733 (1993).
[64] See Robert Dohrman, The Power to (Not) Decide: Implications of Baker’s Fifth Factor for War Powers Reform, Harv. L. Sch. J. on Legis. (2026), https://journals.law.harvard.edu/jol/2026/01/24/the-power-to-not-decide-implications-of-bakers-fifth-factor-for-war-powers-reform/ (“The legal debates about justiciability have, to date, focused primarily on courts’ ability to give meaning to constitutional text and statutes designed to rein in the President—that is, whether courts can say definitively what constitutes “war” under the Constitution or “hostilities” under a statute . . . .”).
[65] See id. (“[C]ourts lack the knowledge and expertise, as well as the fact-finding capabilities and ability to speak in a unified manner, that the other branches have when it comes to interactions with foreign powers.”).
[66] See Campbell v. Clinton, 203 F.3d 19, 24 (D.C. Cir. 2000) (holding that congressmen lacked standing to bring a claim for violation of the War Powers Resolution).
[67] See, e.g., id., cert. denied, 531 U.S. 815 (2000).
[68] See Military Service of The Presidents, Nat’l Museum of Am. Hist., https://americanhistory.si.edu/explore/exhibitions/american-presidency/online/resources/military-service (last visited Aug. 26, 2026).
[69] Id.
[70] President Dwight D. Eisenhower, Naval Air Force Atl., https://www.airlant.usff.navy.mil/Organization/Aircraft-Carriers/USS-Dwight-D-Eisenhower-CVN-69/Namesake-Dwight-D-Eisenhower/ (last visited Aug. 4, 2026).
[71] U.S. const. art. I, § 8.
[72] U.S. const. art. I, § 8.