Congress has tried and failed for two decades to wield its war powers

For more than two decades Congress has failed at one of its most central constitutional duties: setting the parameters of war for the military.

The resulting vacuum got filled by an increasingly powerful presidency, with Democratic and Republican administrations alike executing war policy without any real constraint from Capitol Hill.

This weekend’s attack on Iranian nuclear sites once again showed Congress’ slow and steady slide into irrelevance. Some key power players, mostly Democrats, did not even get the customary courtesy call to let them know ahead of time the B-2s were on their way to bomb Iran.

“The dysfunction in Congress is systemic, and there is not one area of our work that isn’t affected by just the hyper partisanship and the polarization that we’re experiencing,” Sen. Andy Kim, D-New Jersey, who served as a Middle East policy adviser in the Obama administration, said Monday.

Since passing its last use-of-force resolution in October 2002, some senior lawmakers have tried to take similar steps so that Congress could live up to its constitutionally empowered role of being in charge of declaring war. Each bid ended in failure.

Kim recalled how he worked in 2014 on President Barack Obama’s request for Congress to pass a war resolution during the Islamic State’s reign of terror, ending in December that year with the Senate Foreign Relations Committee passing, on a party-line vote, an outline giving the Obama administration power to act.

A couple weeks later Congress adjourned for the year, with the measure never getting taken up and, in the new year with Republicans in charge, the debate died off.

In 2018, a bipartisan group of senators tried to draft a new war resolution to replace the 2001 Authorization for Use of Military Force that had authorized war against the terrorists who attacked New York and Washington – a broadly worded document that presidents have cited time and again to launch attacks that had nothing to do with Osama bin Laden or al-Qaeda.

That flamed out, and two years ago, with Democrats controlling the Senate and Republicans in charge of the House, many of the same lawmakers pushed legislation that would repeal the 1991 and 2002 war resolutions that governed the two Iraq wars.

The Senate approved that effort in March 2023, on a bipartisan 66-30 vote. “The entire world has changed dramatically since 2002, and it’s time the laws on the books catch up with those changes,” Senate Majority Leader Charles E. Schumer, D-New York, said at the time.

The proposal languished in the House and was never considered.

Most of those debates ended in the same deadlock: Liberal lawmakers tried to write prescriptive policy limiting the amount of time troops could be engaged and with more specific regional mandates. Conservatives often tried to give presidents, Democratic and Republican alike, as much leeway as possible.

Now, more than 22 years after Congress first passed that AUMF, more than 18 years after the Iraqi government tried and executed Saddam Hussein for crimes against his own people, and more than dozen years after U.S. combat troops left Iraq, that war resolution is still considered the law of the land.

Of course, having done a full war-powers process in 2002, with many congressional hearings and then weeks of debate, the resulting vote is considered one of the worst of this century. The underlying reason for the war, eliminating supposed weapons of mass destruction, turned out to be nonexistent, the Iraqis did not welcome U.S. troops as liberators and the war turned into a very unpopular quagmire.

President Donald Trump jumped into this arena and thumbed his nose at Congress more forcefully than other recent presidents. Rather than the months-long buildup and political sales pitch to the American people that preceded both Iraq wars – George W. Bush waited five months to launch the 2003 invasion after securing a congressional vote of approval – Trump ordered the attacks in Iran on Saturday with only about a week of discussions with top advisers and Israeli officials.

In separate statements, released about 20 minutes apart Saturday night, neither House Speaker Mike Johnson, R-Louisiana, nor Senate Majority Leader John Thune, R-South Dakota, even mentioned the word Congress, let alone any role for lawmakers in shaping war policy.

“I stand with President Trump and pray for the American troops and personnel in harm’s way,” Thune said.

“The President gave Iran’s leader every opportunity to make a deal, but Iran refused to commit to a nuclear disarmament agreement,” Johnson said.

An hour later, on social media, the speaker acknowledged that some top lawmakers did not get briefed until after the mission ended, saying members “were aware of the urgency of this situation” because it had been publicly debated for several days before the attack.

He added that Trump “fully respects” the role of Congress in declaring war, saying this was a “limited, and targeted” strike.

Yet, speaking later that night, Trump issued new threats to Iran that suggested a much more aggressive military campaign could come their way if their leaders did not agree to surrender any nuclear future for military purposes.

“Remember, there are many targets left,” Trump said at a White House address.

Sen. Tim Kaine, D-Virginia, who has quixotically led several failed efforts at getting Congress to engage on war policy, announced last week his plan to force a vote on a war-powers resolution that would require Trump to come to Congress before attacking Iran’s nuclear sites.

“This resolution will ensure that if we decide to place our nation’s men and women in uniform into harm’s way, we will have a debate and vote on it in Congress,” Kaine said.

But Trump ordered the attacks before the Senate could even debate a resolution trying to compel a debate.

A bipartisan group, led by Reps. Thomas Massie, R-Kentucky, and Ro Khanna, D-California, are trying a similar lift in the House. But with Johnson and Thune firmly in Trump’s corner, failure is the only guarantee.

That’s what happened the last time Congress tried to specifically dictate policy related to Iran, in early 2020 after Trump ordered the killing of Iranian commander Qasem Soleimani when he was in Baghdad, a strike that prompted fears of a fierce Iranian retaliation and possible deeper involvement of U.S. forces against the Tehran regime.

The House and Senate passed resolutions in the spring of 2020 that tried to rein in Trump from using further force without first getting approval from Congress – something he vetoed, ending the debate.

In striking Soleimani, Trump cited the 2002 Iraq War resolution for his constitutional basis and he blasted the congressional resolution for saying he could act only when America was facing “imminent attack.”

“That is incorrect,” Trump said in 2020. “We live in a hostile world of evolving threats, and the Constitution recognizes that the President must be able to anticipate our adversaries’ next moves and take swift and decisive action in response. That’s what I did!”

Congress took its war-declaration role seriously enough last century that when it came to World War II, lawmakers approved six different resolutions to cover the many different fronts of that war – starting with Japan, then Germany, then four other nations in Europe. Every one of those votes in the Senate was unanimous.

By 1973 Congress overwhelmingly passed the War Powers Resolution – overcoming President Richard M. Nixon’s veto – that laid out a highly detailed process for considering war declarations (then dubbed AUMFs) and imposing reporting requirements from the executive branch.

Those powers have atrophied to the point of inaction the past two decades. Even if this latest Kaine-led effort is doomed to failure, Kim said “it’s important to raise this” because the boundaries are getting broken.

On Sunday’s “Meet the Press,” Vice President JD Vance said that our nation is not at war with Iran, but “we’re at war with Iran’s nuclear program” – which was enough of a declaration to infuriate lawmakers.

“He’s the vice president saying, we’re at war,” Kim said. “You know, like, you don’t have the right to declare war.”