Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

After the Bush Administration’s raised concerns over Iraq’s non-compliance with United Nations Security Council resolutions and possible acquisition of weapons of mass destruction, Congress passed and President George W. Bush signed into law a joint resolution authorizing the President to use force to (1) defend United States’ national security “against the continuing threat posed by Iraq,” and (2) enforce relevant Security Council Resolutions.1

§ 3, 116 Stat. 1501 (2002). While President Bush received congressional authorization,2 executive branch attorneys also took the view that such authorization was not legally necessary because the President possessed independent constitutional authority for the military action.3

In more recent decades, Presidents Obama, Trump, and Biden have each claimed independent constitutional authority to conduct military operations without first seeking congressional authorization, albeit on a smaller scale than the Iraq War. These 21st-century conflicts include air assault campaigns in Libya during the Obama Administration;4

. airstrikes against Syrian chemical weapons facilities during the Trump Administration;5 and air strikes targeting Iran-backed militant groups in Yemen and the Red Sea during the Biden Administration.6

Footnotes

1

Pub. L. No.

107-243

§ 3, 116 Stat. 1501 (2002).

2

See Jennifer K. Elsea & Matthew C. Weed, Cong. Rsch. Serv., RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications 13–14 (2014), >https://crsreports.congress.gov/product/pdf/RL/RL31133/17 (providing an account of the lead up to enactment of the joint resolution authority).

3

Authority of the President Under Domestic and International Law to Use Military Force Against Iraq,

26 Op. O.L.C. 143, 152 (2002)

( “To the extent that the President were to determine that military action against Iraq would protect our national interests, he could take such action based on his independent constitutional authority; no action by Congress would be necessary.” ).

4

Authority to Use Military Force in Libya,

35 Op. O.L.C., slip op. at 14 (2011)

.

5

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities the President,

42 Op. O.L.C., slip op. at 3 (2018)

.

6

See, e.g., Letter to the Speaker of the House and President pro tempore of the Senate Consistent with the War Powers Resolution (Pub. L. No. 93-148) (Jan. 12, 2024), >https://www.whitehouse.gov/briefing-room/presidential-actions/2024/01/12/letter-to-the-speaker-of-the-house-and-president-pro-tempore-of-the-senate-consistent-with-the-war-powers-resolution-public-law-93-148-10/; Jennifer K. Elsea & Karen Sokol, Cong. Rsch. Serv., LSB11157, Assessing Recent Airstrikes in the Middle East Under the War Powers Framework 5 (2024), >https://crsreports.congress.gov/product/pdf/LSB/LSB11157.