The Imperial Presidency at War: A Constitutional Crisis Decades in the Making

American warplanes have conducted strikes against nuclear facilities inside Iran. This is a direct act of combat against a sovereign nation, ordered by the President without a word of debate or a single vote from Congress. This action, regardless of its strategic merits, has pushed our nation to the brink of a profound constitutional crisis.

The furor over this strike is not just a partisan dispute. It is the culmination of a decades-long power struggle between the executive and legislative branches. It forces us to confront a fundamental question:

Does the U.S. Constitution’s provision granting Congress the sole power to declare war still have any meaning in the 21st century?

The Commander-in-Chief vs. The Power to Declare War

The framers of the Constitution were deeply skeptical of concentrated power, especially the power to send a nation to war. They deliberately split this authority: Article I gives Congress the power to “declare War,” while Article II names the President the “Commander in Chief” of the military.

This was designed to make going to war a difficult, collective decision, requiring the consent of both the political representatives of the people and the executive who would lead the effort.

Today, this foundational check on power is being tested like never before. Lawmakers like Senator Tim Kaine argue that if Iran bombing a U.S. facility would be considered an act of war, then the reverse must also be true, making the President’s actions a “clear violation of our Constitution.”

Conversely, supporters like Senator Lindsey Graham argue that “you can’t have 535 commander-in-chiefs” and that the President had “all the authority he needs” under Article II. This fundamental disagreement is at the heart of our current crisis.

The Toothless Mandate: What Happened to the War Powers Act?

This erosion of congressional authority is not a new phenomenon. In 1973, in the shadow of the Vietnam War, Congress attempted to reclaim its constitutional role by passing the War Powers Resolution. This law mandates that the President consult with Congress before introducing U.S. forces into hostilities.

For fifty years, however, presidents of both parties have consistently chipped away at the resolution, often ignoring its requirements or using legal interpretations to render it toothless. The executive branch has repeatedly argued for a narrow definition of “hostilities,” allowing for military actions from Libya to Syria to Yemen without prior congressional approval.

Congress, for its part, has largely acquiesced, failing to enforce its own mandate. This decades-long pattern of congressional inaction has created the vacuum of power that the executive branch now fills.

The Pretext of “Imminence”

The administration’s legal justification for the strike appears to rest on the idea of preventing an “imminent threat” from Iran’s nuclear program. But as numerous legal scholars have pointed out, the definition of “imminence” has been stretched to its breaking point.

The right to self-defense against an imminent attack is a recognized principle. But U.S. intelligence has repeatedly assessed that while Iran has the capability to enrich uranium, it has not yet decided to build a weapon.

If a potential future threat can be defined as an “imminent” one that justifies a preemptive military strike today, then the term has lost all meaning as a legal constraint.

As law professor Ryan Goodman notes, “it is very hard to see how the administration can meet that test under even the most charitable legal assessment.” This is not a legal doctrine; it is a blank check for unilateral war.

A Constitutional Rubicon

By ordering a direct military strike on a major sovereign nation without congressional authorization, the President has crossed a constitutional Rubicon. This is not another drone strike against a non-state actor; it is an act of war against a nation-state, initiated solely on the authority of the executive branch.

This moment is the logical conclusion of a 70-year trend: the rise of the “imperial presidency” in matters of war and peace. The question is no longer whether a president can do this, but whether Congress has the institutional will to reclaim its most solemn constitutional duty.

The resolutions introduced by Senators Kaine and Representative Massie are a start, but they are a cry in the wilderness against the vast power the executive branch has accumulated.