President Donald Trump’s claim last summer that the Constitution gives him “the right to do whatever I want as president” was promptly—and rightly—condemned as constitutional fantasy by prominent liberals and conservatives alike. That “ours is a government of limited powers” is as foundational a constitutional principle as they come.
Yet watching the consequences of the president’s decision making unfold, many were left wondering whether law could change the course of events. Indeed, conventional constitutional wisdom has long held that law matters little in executive-branch decisions about the use of military force. In this telling, the Constitution is notoriously indeterminate about how exactly power over force is to be divided, and in practice, no other branch of the government stands between the president and military action anyway. Courts have avoided ruling on the constitutionality of even the most controversial uses of force—where the courts’ input would be the most valuable. Congress, too, has largely ceded its authority in this realm, preferring to let the president take the political hits for any deployment abroad gone wrong. And presidents time and again have used force abroad when they wanted to, with or without congressional approval.
But, as conventional accounts tend to do, this one overlooks a lot. Take Congress, for a start. Recent empirical scholarship has demonstrated convincingly that congressional support (or its absence) has been enormously consequential in shaping presidential willingness to continue to use force abroad. Likewise, the much maligned and regularly misunderstood War Powers Resolution—the 1973 law passed by Congress during the Vietnam era in an effort to reassert congressional supremacy on matters of war—succeeded in solidifying a requirement that the president notify Congress of the introduction of troops into hostilities abroad within 48 hours of any such action. And the reporting requirement is not meaningless. Though the Trump administration’s justifications for the attack on Iranian General Qassem Soleimani have been equivocal, officials had to provide Congress with a report within 48 hours of the strike about what had happened and why. And they did, albeit it in classified form. With debate already scheduled to begin in the coming days over legislation to restrict the president’s ability to take further action against Iran, the administration will feel pressure to keep that report classified. Either way, the report sets a key factual baseline for the discussion to come.