Operation Epic Fury Puts Congress and the Constitution to the Test
The Trump administration will treat Congress’ failure to limit its military campaign as tacit approval. This interpretation is inconsistent with the War Powers Resolution.
On March 2, the Trump administration filed a war powers notification with Congress in regard to Operation Epic Fury, the joint Israel-U.S. campaign against Iran initiated on the morning of Feb. 28. Democratic members of Congress, joined by several Republicans, sought to restrict President Trump’s war powers. On March 4, however, a majority in the Senate voted down the resolution to restrict Trump’s authority to continue the military campaign against Iran—roughly along party lines. A second bill introduced in the U.S. House of Representatives is also being debated, although there seems little chance of a different outcome.
How does the resolution’s failure to muster even a majority of votes to constrain Trump’s war powers in Iran impact the assessment of his constitutional authority? This is a complex question, but the Trump administration—following past examples—will likely interpret the failed resolution as a sign that Congress supports Trump’s military goals. Yet this interpretation ignores an even more controversial aspect of the interbranch war powers equation: the War Powers Resolution (WPR).
What Does the WPR Require?
The WPR was passed in 1973 in response to congressional frustration over the difficulty in compelling President Nixon to bring an end to the Vietnam War. Operation Epic Fury implicates Congress’s Article I war powers, but it also triggers the WPR. Enacted over Nixon’s veto, the law unambiguously indicates that, except in cases of emergency when the United States, its territories, or its armed forces are attacked, the president may not commit U.S. armed forces into hostilities or even situations in which hostilities are imminent unless Congress has enacted express authorization. This remains the case regardless of a conflict’s scale or duration: The president may not enter U.S. troops into hostilities at any level, once congressional war powers are implicated, without express congressional authorization.
Specifically, the WPR states that the president is authorized to introduce U.S. forces into hostilities only pursuant to “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Neither of the first two requirements can be satisfied without a majority vote in support of the president by both houses of Congress.
Epic Fury is markedly different in scope, scale, and objective from the U.S.’s more limited June 2025 engagement with Iran, Operation Midnight Hammer, which was specifically intended to disable the regime’s nuclear capabilities. Following the approach of prior administrations, Trump asserted unilateral Article II authority to order that attack by claiming it fell within Article I’s meaning of “war” and therefore did not implicate either congressional war powers or the WPR. These interpretations of constitutional authority and the WPR are both
No such interpretation under Article I and the WPR is plausible with the current intervention in Iran. The scale, scope, and objectives of the campaign indicate that this is a war, not a limited military engagement. According to the Trump administration, the operation is planned (for now) to be at least four to five weeks long. That alone demonstrates the difference from a small-scale military action that is limited in duration. At the time of this writing, seven U.S. service members have been killed in action, with many more wounded and more casualties expected. Trump has also threatened to deploy ground troops if necessary. And military officials have already sounded alarm bells about the potential depletion of critical war munitions.
This all spells out that Operation Epic Fury rises to the level of hostilities that triggers the WPR and the broader necessity of congressional involvement in the war powers equation. This also distinguishes the campaign from Trump’s directive to conduct the military strike to capture Venezuelan President Nicolás Maduro in Operation Absolute Resolve. The Justice Department’s Office of Legal Counsel (OLC) wrote then that the Maduro operation fell within the president’s scope of inherent constitutional power and therefore did not implicate the WPR because of the limited scale and time that the Trump administration had anticipated.
However implausible this claim was in Venezuela’s case, it is even more so with the ongoing campaign against Iran. Yet, if the WPR effectively constrained the president, the need for a war powers resolution vote would not exist because it would be clear that waging the current campaign—without first securing express congressional authorization—violates the plain terms of the law. So, why isn’t that enough to stop him?
The Constitutional Argument to Limit the WPR’s Reach
A more subtle and infinitely more difficult question than whether Operation Epic Fury violates congressional war powers is whether the WPR’s requirement of express congressional authorization is constitutionally valid and binding on the executive branch. Or are presidents, and Congress, justified in relying on more implicit manifestations of congressional support for war powers?
This question has been litigated to some extent. In 1990, several members of Congress sought an injunction to prohibit President George H.W. Bush from launching an offensive war against Iraq after the U.S. liberation of Kuwait. Judge Harold Greene denied their request for a preliminary injunction on the grounds that relief was precluded because a dispute between the president and Congress was not yet ripe. Why? Because Congress had not yet voted to prohibit a war against Iraq.
In this regard, it seems notable that Greene never even mentioned the WPR. Instead, he suggested congressional inaction might be sufficient to satisfy the constitutional requirement that the president act with congressional support. Specifically, in footnote 26, he wrote, “It might be that these legislators are content to follow some of the historical patterns, including those involving the hostilities in Vietnam and Korea where there was no declaration of war, or that they deem the consultations had in recent months and weeks between the Executive and congressional leaders to constitute adequate compliance with Article I, Section 8, Clause 11 of the Constitution.”
The Trump administration and a majority of Congress seem content with following Greene’s view in Dellums v. Bush: A failure by Congress to enact legislation that requires the end of hostilities, coupled with no effort to limit the president’s access to the resources necessary to continue the campaign, should be treated as evidence of congressional support for the president’s actions, even without specific statutory authorization.
Congressional Objections to War Over Time and How Presidents and Courts Have Responded
Such an interpretation of Congress’s role as highly deferential to the president is not historically novel, even in the post-WPR era. Other presidents have relied on analogous evidence of implied congressional support to both initiate and sustain combat operations without express statutory authorization. This approach extends back to the 1950s when Congress acquiesced to the start of the Korean War, as well as when it struggled to force an end to the Vietnam War. It was the primary reasoning applied when the judiciary endorsed presidential war power for the war after Congress revoked the Tonkin Gulf Resolution. In the era since the WPR’s enactment, the statute became significant in the two military campaigns conducted without express congressional authorization—against Serbia in 1999 and Libya in 2011—that exceeded the WPR’s 60-day grace period. Congress was relatively silent about other small-scale military actions initiated by presidents. Unsurprisingly, presidents filled this authorization vacuum by aggressively asserting their own supposed constitutional war powers, which were bolstered by the absence of any congressional challenge.
The WPR’s primary objective was to alter this “implied consent” equation; to limit the president’s war powers prerogative and to demand for Congress to act affirmatively by authorizing the exercise of national war power, especially when a president intends to initiate hostilities. The statute highlighted a clear constitutional reality: It is harder for Congress to force an end to a war once it starts than to prevent a president from starting it in the first place. During the Vietnam War’s final months, for example, Congress passed a bill to cut off all funding for the continuation of the bombing of Cambodia, but Nixon threatened a veto. Recognizing their majority was insufficient to override a veto, congressional leadership reached a compromise with Nixon: They would extend funding for several more months for Nixon to sign the law.
Amid the continuing hostilities, a group of U.S. Air Force bomber pilots, joined by Rep. Elizabeth Holtzman (D-N.Y.) and a handful of other members of Congress, asked a federal court to block the pilots’ orders to participate in the bombing during the extension period. The group relied on the fact that a majority in both houses of Congress had voted to end the war, and that the compromise extension did not reflect Congress’s will because it was extracted from Congress under the president’s threat of a veto. Accordingly, they argued, the president lacked the constitutional authority to order them into combat.
The pilots’ effort ultimately failed. A federal appeals court held that the compromise reflected the constitutional process in action. Congress had authorized the president to continue the war, it reasoned, because the compromise law was the joint action of the president and Congress.
Lawsuits challenging presidential war powers during the Vietnam War reinforced this reality. In case after case, courts rejected the argument that a president may wage war only pursuant to express legislative authorization. Yet courts still looked to evidence of implied congressional warmaking support—most notably through the funding for material resources and providing forces through the draft for war—as proof that the president was acting consistent with congressional intent.
Congress’s Intent in Passing the WPR
This is why the WPR sought to impose three guardrails for war initiation.
First, as noted above, with the exception of an attack on the United States, its territories, or its armed forces, Congress tried to ensure that the president would seek express statutory authority before committing U.S. armed forces into hostilities.
Second, in the absence of express congressional authorization, the WPR mandates that military engagements must terminate no later than 60 days after initiation unless Congress has acted to endorse it. The law makes clear that the so-called 60-day clock does not vest the president with general constitutional or statutory authority to commit U.S. forces to hostilities. Instead, the law effectively provides for a grace period for the president to persuade Congress to endorse his use of military force. If he fails, the president returns to his baseline default: a lack of authority to commit U.S. forces without express congressional authorization.
Third, the WPR indicates that Congress could, at any time, terminate hostilities with a concurrent resolution, a simple majority vote of both houses of Congress with no requirement that the president agree to the resolution. Congress did not want to be held hostage to veto threats in the future. It is worth noting, however, that based on the Supreme Court’s invalidation of the legislative veto in INS v. Chadha, this provision is considered a dead letter, suggesting that even if Congress had passed the recently proposed concurrent war powers resolution it would almost certainly have been treated as nonbinding for the president.
The guardrails provided by the WPR have never functioned as Congress intended. One reason for this is that presidents have consistently asserted that the law is unconstitutional, because it intrudes on the president’s constitutional authority as commander in chief. This appeal to inherent Article II authority simply denies the power of Congress to limit presidential warmaking. This view has gained ground and is reflected in multiple OLC memoranda.
Additionally, several court rulings have made it nearly impossible for members of Congress to seek judicial enforcement of the WPR. And perhaps most importantly, subsequent Congresses—including the current one—have rejected the idea that anything short of express statutory authorization must be interpreted as congressional opposition to the president’s actions.
Congressional Support for a War Should Be Unambiguous
The president is not vested with unilateral authority to thrust the nation into war. The Constitution demands that Congress align with any such decision. The Republican majority in Congress appears satisfied that Trump has acted constitutionally and seems content with implicit, rather than explicit, support for this latest war. That appearance of congressional acquiescence allows the Trump administration to argue that the conflict is on solid constitutional turf. Yet the public’s confusion over the president’s warmaking authority reveals that the WPR failed in its effort to ensure that Congress indicates its support for presidential warmaking authority expressly—or otherwise that it accepts the consequence of having its inaction treated as opposition.
The authority to thrust the nation into major hostilities does not belong to any one branch. It is a power shared between the president and Congress. The framers divided war powers deliberately between Articles I and II of the Constitution with the expectation that war power decisions would require both branches’ cooperation. How Congress chooses to exercise its authority, as well as how the president interprets anything less than express authorization in support of his initiatives has never been defined. Instead, resolving this question has been left largely to the two political branches of government to sort out, with Article III courts unwilling to second-guess how Congress chooses to manifest its cooperation. Thus, when Congress sends vague and ambiguous signals, such as voicing objections but nevertheless voting for funding packages, there is no third-party arbiter to pronounce definitively on the meaning of its actions. In such a case, no one should be surprised that presidents will persist in making unilateral decisions about when to commit the country to fighting wars.
Other than military action to fend off an attack on the nation or to rescue U.S. citizens abroad, starting or ending a war should be dictated by a clear expression of national will. That requires congressional action, not just acquiescence. For all its flaws, the WPR sought to compel Congress to take an affirmative stand in support of presidential war decisions, with the knowledge that failing to do so must be interpreted as opposition. Congress may choose to ignore this equation, but in doing so it undermines both national unity and its own strategic legitimacy.
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