The Truth Is, There Are No Legal Limits on an American President’s Warmaking

And the public no longer really cares about distant wars whose bill won’t come due for a while

While the fighting between Iran and Israel seems to have died down, President Trump’s decision to attack Iran has again raised questions about the scope of presidential war powers. If a president can bomb a foreign country without congressional authorization, what is the point of the constitutional clause that clearly gives Congress the power to declare war? And if a vital constitutional clause becomes functionally worthless, how can a liberal country protect against the bellicose whims of a president?

Some, like Rep. Alexandria Ocasio-Cortez, have said that Trump’s unilateral actions are an impeachable offense. Predictably, Trump supporters and others have rightly pointed out that it’s a little late to gripe about unilateral presidential military action since American presidents, regardless of party, have long carried out innumerable military strikes on foreign soil without congressional approval. Korea was not a declared war, it was a U.N.-sanctioned conflict. Vietnam was a purported police action meant merely to protect the South Vietnamese government from the communist aggression of the north. Impeachments should have started long ago, if people actually cared.

Unfortunately, without a realistic chance at impeachment—and impeachment for military actions was very unlikely even in more convivial political times—whether people care about war is almost all we have to rein in presidential war powers. But the non-constitutional guardrails that have sometimes constrained war throughout world history are now largely gone in the U.S., namely, death and taxes. People pay attention when their friends and compatriots go to war and whether they come back alive. Americans’ distaste with the “police action” in Vietnam directly correlated with the number of American deaths, which jumped from 216 in 1964 to 1,928 in 1965 and peaked at 16,899 in 1968, right before Woodstock. People also pay attention whether they are in danger from retaliatory attacks, which are unlikely on American territory. And they notice when their taxes are raised to pay for war. In times when the unilateral decisions of kings and emperors largely determined when a country went to war, the people could still feel the costs of war in taxes, and sometimes they would revolt. The Magna Carta of 1215 partially arose from the Barons’ desires to no longer be excessively taxed to fund King John’s failed wars in France. But those were just complaints from the Barons, a small and exclusive class. Later, in 1381, the Peasants’ Revolt was a more popular uprising against excessive taxation due to, of course, wars with France. Even relatively ignorant peasants knew when they were being taxed excessively to pay for the king’s wars.

Distant Bombings Not So Bothersome

But in modern day America, where we’ve become masters of killing from a distance and spending ourselves into $37 trillion in debt without significantly raising taxes (yet), we fight many wars and care little about them. Yes, there are pundits and thinkers who rightly raise alarms, but do enough people care about dropping bombs on countries that maybe they can’t find on a map? Without deaths and taxes, they may not even notice.

Our leaders assure us that such attacks are not “war” and that military hostilities are necessary to preserve our freedoms. Some seem to think that it is not “war” if American troops aren’t in danger. I wonder if Iranians agree, or if Americans would agree if Iran dropped a “bunker buster” bomb on nuclear missile silos in rural North Dakota—no Iranian troops on the ground, no casualties, and certainly addressing a significant threat to Iran (an Iranian “police action”?). Presidents avoid the term “war” and instead use phrases like “kinetic military action” to describe attacks on foreign soil—a phrase Orwell would have been proud to coin (“we’re always in a kinetic military action against Oceania”). They also play up the imminence and magnitude of the threat, even when, as with President Obama’s attacks in Libya, the administration had time to cultivate a U.N. Security Council resolution and then wage a “kinetic military action” for eight months—but evidently didn’t have time to get congressional approval.

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Trump's Iran Strike Shows the Urgent Need for Congress to Claw Back its War Powers

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Despite 9/11 and other terrorist threats, Americans live in a condition of historically unprecedented safety from international threats. The rage and memory of the British burning of Washington, D.C. in the War of 1812 has subsided. The last invasions of the United States by a foreign power were when Japan occupied some Aleutian Islands in World War II. Japan also used balloons and a single plane to drop a few bombs on the West Coast. Before that, the last ground invasion of the continental U.S. was when Pancho Villa raided into New Mexico in 1916. This geographical safety has long been an incredible bonus for America, and avoiding foreign wars a world away was one of George Washington’s admonitions in his farewell address. Geography is still our best friend when it comes to safety, even more than stunningly destructive weapons, a world-ranging military, and robots that kill other people. This safety has come to be expected and of course demanded, which is one reason Americans tend to freak out when we are attacked.

Constitutionally Unbound

Some may argue that a president can’t really bomb or invade any country he wants. Could Trump really bomb, say, Mexico? He’s already engaged the military in his quixotic fight for border security, why not bombs? Why not troops in Mexico? The Alien Enemies Act of 1798—an act that partially depends on the definition of “declared war”—has already been used to justify Trump’s immigration policies. Yet bombing Mexico or sending in troops seems to many like a bridge too far. But is it a constitutional bridge too far or are the limits entirely prudential? Mexico, after all, is right there at the border, and the cultural and personal ties between the two countries run deep. People would notice a “kinetic military action” against Mexico and probably not be happy, thus affecting even a term-limited president’s standing in history. But past presidents like James K. Polk—who sent troops into disputed territory to provoke a war with Mexico and to convince Congress to declare war—emerged relatively unscathed by history, at least until recently.

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Executive Watch

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Further away from our borders, the prudential restraints on presidents become less salient. How many people who heard the news that Trump attacked Iran said to themselves, “Oh, we’re bombing another country. Meh, so what’s new?” Perhaps Trump or a future president decides to bomb factories in China that produce fentanyl, arguing that it is a de facto act of war for China to flood America with poison that threatens the lives of millions. This would be a bad idea, but is it unconstitutional under current constitutional law as enforced by the courts? Likely not.

Awakening the American Public

But constitutional law is not only about whether a court will stop a wayward president or Congress. Some would argue that meaningful constitutional law isn’t even primarily about court orders, but norms of behavior. A court order can be ignored by a recalcitrant and petulant president. Congress can sanction presidential behavior—perhaps through the War Powers Resolution—but presidents have many tools to get around an unfriendly Congress. Nevertheless, Congress should still make a fuss when there is a fuss that should be made.

And, although there are many reasons for Americans not to care about war, we still do. How much we care often correlates with the freshness of memories of recent American military failures. The hangover from our failures in Vietnam probably served to restrain militaristic presidential whims in the decades after the fall of Saigon. The tragic image of Vietnam that emerged in media—think movies like Platoon or Full Metal Jacket—helped nurture a fear of being “bogged down” in an interminable foreign conflict. Fears of another Vietnam were part of the debates over the second Iraq war and the war in Afghanistan, even when American casualties in those wars were comparatively low.

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Let's Rededicate Ourselves to a Nonpartisan Military Free of Domestic Entanglements this Memorial Day

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Many constitutional barriers are or have become functionally paper tigers. Judges usually don’t want to get involved in assessing the prudence of an ultimately political action, and if they do they won’t say so outright (“We hold the law is unconstitutional because it is bad law”). The Supreme Court will rarely if ever strike down a law just because it is a bad idea, which would make it a true super legislature. Thus, some government actions are thought to be “plenary”—given to the absolute discretion of the government actor. The courts won’t overturn a presidential pardon because it is a bad idea, for example, nor will they stop a war because it is wrongheaded (“We hold that Chinese-produced fentanyl isn’t a big deal, therefore the attacks are unconstitutional”).

That doesn’t mean constitutional barriers are meaningless, but rather that the meaning and power they have are not only in judicial decisions. We shouldn’t become inured to presidentially decreed attacks on foreign countries just because they have become common for both parties. When a president breaks a constitutional barrier, it becomes a potential teachable moment to make more people care about constitutional limits, the international liberal order, and the deaths and damage we cause in other countries.

There are people who still care—even those who no longer have to pay in blood and treasure for the president’s deadly whims—but we could use a lot more.

© The UnPopulist, 2025

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