The topic of this episode is, “Does Congress’s power to declare war mean anything?”
In June of 2025, President Donald J. Trump directed US aircraft to drop 30,000 pound bombs on nuclear facilities in Iran. Some legislators in Congress and some media complained that this was a violation of the US Constitution. They note that Article I, Section 8 declares, “Congress shall have the power to declare war.” That same article of the Constitution also empowers the legislature to “provide for the common defense.”
So, was the President’s action constitutional or not? And does Congress’s power to declare war mean anything?
To help us think through these questions I have with me my AEI colleague, Gary Schmitt. He is the author of many books and articles on American government and he has written extensively on legislative and presidential war-making.
Kevin Kosar:
Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.
And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.
Gary, welcome to the podcast.
Gary Schmitt:
Thanks for having me, Kevin. It’s great to be here.
Kevin Kosar:
Let’s start with the Constitution. The text states, “Congress shall have the power to declare war.” Take us back to the Constitutional Convention of 1787. What were they trying to achieve with this provision and what does it mean?
Gary Schmitt:
Let me begin a little bit more broadly and then dive down into the text a little bit.
Most broadly, I think they were trying to square a very difficult circle; that is, creating a energetic, independent executive within the context of a republican government. I think complicating the matters is the fact that there was no obvious model for how to do that. Authority over war, peace treaties, etc. had been the sole province of monarchs of Europe, and obviously the Founders were not interested in that.
On the other hand, having lived under the Articles of Confederation, they understood that there was a need for an independent executive to effectively carry out foreign policy and national security affairs. There had been a lack of decisiveness and effectiveness during the period of the articles where the Articles of Confederation Congress actually conducted, in effect, the executive affairs.
I think this background kind of helps explain why the Constitution’s drafters settled on giving Congress the particular authority to declare war.
It’s important to note that that phrase does not appear until very late in the convention. Up until that point, the draft text of the Constitution said, Congress had the authority to make war. And when they were reviewing the draft constitution clause by clause, Madison and others objected to the phrase, “make war” on the grounds that it seemed to suggest that the president would not be able to defend the country from an attack. So they changed the wording from “make” to “declare.” There wasn’t much debate about this, but what you have suggested by the change is that Congress is the sole authority for moving the country from a state of peace to a state of war, whereas the executive is still has the responsibility for defending the country in some fundamental ways.
And I think the issue that’s always bedeviled members of Congress and presidential administrations is, what does it mean to defend the country? How broad is that and how limited is that? I think that’s the nature of the debate that we’ve had for more than 200 years.
Kevin Kosar:
The Constitution also notes that the president is supposed to be Commander-in-Chief, and it does not define “war” as opposed to defense or response to a conflict instigated by another, or response to a threat.
There is a lot of ambiguity that the text itself does not fill in, and the young Republic was tested by an ambiguous situation.
Gary Schmitt:
There were a lot of theoretical writings about what powers belonged to which branch of government, from Locke and Montesquieu and Blackstone. But again, they were writing when the monarch of England was the sole executive and responsible for all these affairs. So there was not a very deep analysis of the various definitions of war itself.
Then you come into the John Adams administration and you find yourself in what they called a Quasi-War; that is, there were hostilities between France and the United States, but we never declared war. So there was a great deal of debate about whether or not some of the steps that Adams wanted to take, like arming the merchants ships to be able to defend themselves against French privateers, undermined Congress’s authority to declare war, not because they thought it was equivalent of declaring a war, but because they thought some incident could happen with these armed merchants that would lead to war. The Republicans at that time pushed back very hard against any declaration of war or having the president give that authority to the merchants.
A similar issue arose as the French behavior increased on the high seas. Adams authorized American naval vessels to protect American shipping. The Adams administration thought all this was being done rightfully so under the notion of defending commerce and Americans on the high seas, whereas the Republicans believed that it was undermining their ability to declare war.
What eventually happened was that Congress did actually authorize the president to have the United States actually take offensive actions. So you had the situation in which eventually Congress did authorize hostilities against France, but it didn’t declare war. A few years later, the Supreme Court and a Supreme Court case discusses all these ambiguities and comes up with the idea that there’s a declaration of war, but there are also things lesser than declarations of war called imperfect wars, or limited wars. And that’s what the situation was. So very early on we find ourselves in a debate about exactly where the lines were to be drawn, that were left kind of ambiguous when the Constitution was drafted.
Kevin Kosar:
You referenced the monarchs of Europe. Certainly one of the things that the Founders did not want to have is an executive figure who could raise funds and just start fights with other nations because that was much of the history of Europe. Having public input on whether or not you’re going to be engaging the nation in these battles was one of their objectives. On the other hand, some people have put forth this notion that essentially the US can’t do any fighting unless Congress declares a war, which is silly. If you have patrol boats out on the coast, and it’s the year 1800 and you’ve got another nation’s ships or privateers working on behalf of other nations who are coming up and trying to take them over, you’re allowed to punch back.
And to some degree by virtue of the fact that we have an annual appropriations process where Congress can appropriate money from cannonballs and ships, there is a vehicle by which popular consent for engaging in hostilities, if not outright declaring war, can be expressed.
Gary Schmitt:
Right, you make a great point because one of the things the debates about the war powers sometimes forgets in this founding generation is that they were very conscious of the fact that if you provided the president with a certain level of armed force, that was the key thing. If you didn’t build ships, you wouldn’t go to war, and if you build ships there’s a possibility of war. Most of the debates about Congress’s war powers were tied to decisions about whether to build up the Navy, reduce the Navy, expand the Army, reduce the Army, etc., so they had a very realistic understanding of the power of the purse and what it meant for Congress to be the authority in providing for the armed forces.
Kevin Kosar:
And, if memory serves, when Thomas Jefferson rolled into the White House, he was very much of the mind that a standing Army was a peril. So he was pushed to shrink the size of the Army, but they didn’t eliminate it entirely. They understood that there were threats out there in some sort of capacity to respond to: encroaching European powers or—
Gary Schmitt:
Well, we had Indians in the frontier that were not very friendly at times, so you couldn’t get rid of the Army simply, although Jefferson did try to go out of his way to reduce the naval forces in such a way is to make it much more difficult to engage in any sort of hostilities that might lead to a full scale war.
Kevin Kosar:
When was the last time Congress formally declared war? How was that done?
Gary Schmitt:
That’s a good question that I don’t know the answer to—even I wasn’t alive then.
Not the last declaration of war, but the most famous declaration of war was December 8th, 1941, in the aftermath of the Japanese attack on Pearl Harbor. But actually another declaration of war took place three days later. Nazi Germany declared war on the US and on the 11th of December, Congress passed a resolution declaring war against Germany as well. What’s interesting about the decision there is if you were to go back to the very beginning and the Founders and the distinction Madison wants to make between make and declare, Japan attacked the United States, and so it’s a question of whether we actually had to declare war or not.
I think there’s an answer to that, which is that the assumption was that when you declare war, the implications for international law and domestic law change from just the difference between that and defending yourself and also just an authorization for hostilities. So declaring war is meant to be a big cannon when it comes to the legal state of things.
Kevin Kosar:
Your answer nicely noses us into my next question, which is that it’s been 84 years or so since Congress declared war. Obviously, we’ve gone into battle since that time.
Why hasn’t Congress declared war? It hasn’t simply checked out of the decision-making process as to if or when the US government should involve itself in conflicts, right?
Gary Schmitt:
I think principally because we haven’t gone to war on the kind of scale that we did in World War II or World War I, where the whole nation was involved. It had impacts on domestic law in terms of what the commander in chief could do, both domestically and internationally. I think it’s somewhat misleading sometimes when people say, we haven’t declared war, so therefore Congress hasn’t been involved in decisions about going to war.
If you look at the major conflicts since World War II, Korea, the First Gulf War, Panama, Vietnam, Afghanistan, and Iraq, four of those had congressional authorizations. In the case of Korea, at the time both the Senate and the President read the UN charter as obligating them to go defend South Korea. In the case of Panama, there were actually American citizens at risk. There had been a murder, and also there were obligations under the Panama Canal Treaty that were being violated by and in danger of being violated by Noriega. Therefore, it could arguably be said it was a defensive war that the president had the authority to undertake.
So again, broadly speaking, in these major conflicts, Congress actually has been involved. And of course they’ve also been involved, as you mentioned before, in providing monies and the authorization for supplies and the rest for the conduct of the war.
Kevin Kosar:
In 1973, Congress enacted the War Powers Resolution, a law that aimed to give legislators a bit more say in the decision to involve the country in hostilities. What does this law require, and has it been effective?
Gary Schmitt:
The law itself requires the president to consult with Congress before sending troops into hostilities. And it also requires him to submit a report within, I think it’s, two days or 48 hours describing what he is up to and why they’re taking the actions that they are, short of the declaration of war. Then the next element of it is that supposedly Congress, if it hasn’t actually authorized the president taking these steps within 60 days, the president’s obligated to pull troops out of that situation.
And then there’s also a proviso there where Congress could, through a joint resolution, demand at any time that the president end the conflict and pull the troops out of harm’s way, although that latter provision has kind of gone by the wayside simply because the legislative veto, which it was, has been basically ruled unconstitutional by the Supreme Court.
Has it been effective in curtailing presidential war making? I’d say basically no, but not totally.
The first thing is no president has actually recognized the laws as binding on him constitutionally. And in terms of consulting with Congress, what that’s devolved down to is they inform Congress, but they actually don’t seek from Congress its consultation in a substantive way. As for submitting a report, presidents have submitted reports, but they (say they) do this out of deference to Congress, not because they’re obligated to do so. Finally, and most importantly, we’ve never seen a conflict ended through Congress not acting within the 60 days or after the 60 days, the end of conflict. So on the most extreme point of Congress’s ability to end a war, the law hasn’t survived in any stretch of the way being implemented.
This issue comes up, I think, most dramatically in recent times with the 2001 AUMF to go after Al-Qaeda and Afghanistan, which has now been morphed by the executive branch into a global war on terror, when the actual text of the authorization is quite limited. So here’s a case where you would think that at some point Congress would act to sort of tell the president to either come back to us for a broader authorization that takes care of what you wanna do in places like Africa and the Middle East, or we shouldn’t be involved in those counter-terrorism operations without a congressional authorization. But Congress hasn’t acted. That’s a really telling case that the War Powers Act actually hasn’t done what it was was intended to do.
Now, having said all that, there’s a kind of a spirit of the War Powers Act that I think that still exists. You do see administrations shy away from particularly sending ground troops into places without congressional authorization. And I think if you go back and look at the debates over the First Gulf War, and the Second, and Afghanistan, you’ll see a tendency for administrations eventually to come around to seek a congressional authorization if they’re looking to put boots on the ground. So the War Powers Act technically has not been effective, but in, in spirit, I think it’s actually had some impact.
Kevin Kosar:
Some might wonder why Congress hasn’t bothered to hold the executive’s feet to the fire, but my own sense is that, to some degree, legislators are making a rational calculation. Their calculation is that when there is any sort of US military action, the public is going to associate that action with the decision of the president, so Congress can kind of sit on the wayside and give a president enough rope to hang himself to some degree, and then when they can read where the public is at, they can leap in if they want to.
Of course, there’s going to be partisan divide in Congress. If you have a majority of the same party as the president, they’re not going to want to be overly critical of their own guy. If the other party is in charge, then perhaps they’re gonna be a little more inclined to reign him in. But, there are just partisan calculations at work there. And I think it’s very interesting that you point out that there’s a kind of unwritten agreement that is not in the Constitution or in the War Powers Resolution that it’s one thing to have large ships firing missiles into foreign territory or bombs dropping from the sky, but it’s far another thing when you’re talking about putting US soldiers physically into another country for an extended period of time and in significant numbers, as opposed to 200 military advisors who were over there. That’s not enough to trigger a bigger conversation about are we going to war, whereas if you wanna put 50,000 guys on the ground there, that’s a different situation.
Gary Schmitt:
I think one of the ironic elements of the War Powers Act is that it actually gives the president a great deal of initiative and discretion to engage in hostilities without congressional authorization, whether defensive or offensive. So here you have this law that was designed basically to curtail the so-called dogs of war, but Congress actually gave the president a great deal of rope to potentially hang himself by being able to be the first actor. There were practical reasons for perhaps doing that because, United States is this global power and having Congress try to micromanage every small hostility or every need to do something on the world stages was thought to be more difficult and ineffective. Nevertheless, it is interesting that the law itself provides for a good deal of discretion that I think actually the Founders would’ve said is unconstitutional.
Kevin Kosar:
And let me just add in something I wanted to highlight earlier that you said that was particularly striking. When the United States is party to a treaty, and that treaty would obligate the United States to help defend somebody if that somebody gets attacked, waiting around to declare war and going through that whole process—and you might have a divided Congress, Congress might be out of obsession, etc.—that kind of necessitates or is a kind of agreed permission for an executive to act expeditiously and not to have to wait around for a formal resolution to be pushed through Congress.
Gary Schmitt:
The one thing people probably don’t know as much of is, there were all these interventions in Latin America, in the late 19th and early 20th centuries, and what’s gone unmentioned often is that most of these, interventions were the countries we had treaties with, where the US had actually designed the treaties in such a way that if something untoward was happening they could intervene. So even when we were were doing our imperial best, Congress had already signed on to giving president that kind of discretion.
Kevin Kosar:
And not to be forgotten is that for a treaty to be a treaty, it has to go through the US Senate.
President Trump directed US war planes to bomb Iran not too long ago. Was this action a violation of either the War Powers Resolution or the US Constitution?
Gary Schmitt:
So in the War Powers context, it technically was a violation because there was no consultation with Congress.
As for the Constitution, I think it was completely constitutional. We’ve been at war with Iran since the hostage crisis in the late 1970s. Iran, through its proxies, have killed nearly a thousand or more than a thousand of our US soldiers. And more recently they’ve tried to assassinate former senior officials and in the last year alone, there was a plot to try to assassinate candidate Donald Trump. So we’ve been at war with Iran forever. And the reality is that we haven’t struck back at Iran for all kinds of policy reasons that successive administrations have made. But the fact is that even if we haven’t struck back as a policy decision, striking back is not something that was constitutionally mandated. And because we’ve been attacked by Iran continuously over the years, I think it’s perfectly constitutional for President Trump to have taken the action that he did.
Kevin Kosar:
Alright, Gary, we are out of time and this has been a really interesting discussion. I think what has come out very clearly is that the meaning of the text of the Constitution (that Congress has the power to declare war) and the application of that text are really complicated, it has evolved over time, and it’s going to basically continue to be an ongoing negotiation between the two branches.
So with that, let me thank you for helping us better understand Congress’s power to declare war and the presidential power to undertake military actions.
Gary Schmitt:
Thanks, Kevin. Thanks for having me.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Jaehun Lee and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging at AEI. Once again, thank you for listening, and have a great day.
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