No Kings: 1776–2026: Whose War Power?
No Kings: 1776-2026: Whose War Power?
Carolyn Eisenberg, Professor of US Foreign Policy
Introduction:
In September 1787, Benjamin Franklin was approached by Mrs. Elizabeth Powel after the constitutional Convention was over. She wanted to know if the delegates had created a republic or a monarchy. Franklin famously answered, “A Republic, if you can keep it.” By which he meant if the citizenry was alert and engaged, the new government would survive. Otherwise not.
We are gathering here this morning, going into our seventh week of an undeclared war with Iran. Before attacking Iran, the Trump Administration failed to consult our allies, members of Congress, or the American people, for that matter. In his more than two-hour State of the Union address, Trump spent less than three minutes on the topic of Iran.
This development has been linked to a broader concern about the President’s radical departure from the Constitution, and a belief that our democracy is disappearing.
None of this would have surprised our Founding Fathers. There was a profound fear that our new government -based on consent of the governed- could revert to a monarchy.
In writing up the Constitution, a priority was 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; to raise and support armies.”
By contrast the President’s job was to act as Commander-in-Chief once Congress had declared war.
This division of powers was no casual matter. For the Founding Fathers, the decision for war was one of the most profound decisions a government could make, and if it became an executive function –as was common in past societies—it would grant one man far too much power.
James Madison: “The executive is the branch of power most interested in war and most prone to it. War expands executive power, creates secrecy, and weakens liberty.” Since the legislative branch was closest to the people, Madison believed there would be greater caution in rushing into armed conflict.
For Thomas Jefferson, George Washington, and their colleagues, the decision for war was too serious a matter to be left in the hands of one man.
When Donald Trump said recently that the only limits on his use of military force is “my own morality. My own mind. It’s the only thing that can stop me,” this was exactly what the Founding Fathers sought to avoid.
So how did we get from there to now? And how has it happened that Congress has not declared war since December 1942, yet we have been in scores of armed conflicts with other nations-some lasting for over a decade.
One simple answer is that since World War II, American presidents have found it quicker, and simpler to look for ways around Article I. And from the time of Korea—through the Vietnam War—they had ways of working around that imperative.
The case of Vietnam had particular significance. In August 1964 President Johnson reported that US ships had been attacked in international waters by North Vietnamese boats. Everything about this report was misleading, or a flat out lie. However, based on this inaccurate information, Congress passed the Gulf of Tonkin Resolution, which authorized the President “To take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.”
At the time, Congress passed this resolution, it was seen as limited authorization, with less than 20,000 US military personnel in the area. On that legal basis alone, the Johnson administration increased the American presence to 550,000 troops. By the time this project was over, there were 58,000 dead American soldiers, 2-3 million dead Vietnamese, and massive destruction across Cambodia and Laos. There was nothing in that early authorization that prefigured anything of the kind.
By 1973, the US part of the Vietnam War was over, and it was widely recognized to have been a catastrophe for almost all parties. The misuse of the Gulf of Tonkin Resolution was well understood, as was the urgent need to reassert the power of Congress over the decision for war.
In November 1973, over Richard Nixon’s veto, Congress passed a War Powers Resolution, which was designed to reclaim its authority over the decision for war. This required the President to formally notify congress within 48 hours of deploying troops and specified that military action must end within 60 days, unless authorized by Congress.
It also stipulated that by concurrent resolution, Congress can require US troop withdrawal before the 60 days are up. Despite the high expectations that accompanied this resolution, as a practical matter, it has proved relatively useless in reducing the American propensity for war, or for curbing Presidential overreach.
There are several reasons for this, but one major point is that according to the resolution, a President has 60 days to deploy military power even without Congressional consent. In other words, unless Congress specifically requires a withdrawal, the President can wage war in another country for at least two months. And of course that’s what’s happening right now.
This brings us back to Iran, and the impact of US actions, because this matter of who decides to begin wars has real life implications.
So, during 40 days of warfare, conducted with Israel, what do we know.? American planes struck Teheran—a city of 90 million people—with thousands of bombs. The White House claimed they were hitting military targets. Perhaps. But the bombs were dropped in densely populated residential neighborhoods. According to human rights activists, at least 1700 civilians were killed—students, teachers and health care workers.
Drawing on the NY Times and other publications, on the first day of the war, American missiles hit an elementary school in a southern Iranian town, killing 175 people, most of them children. Parents came to pick up their children and discovered they were dead.
Secretary of Defense Hegseth claimed that the Iranian government had struck the school which made no sense—but was proved to be a lie, when it emerged that it was an American Tomahawk missile that blew up the school.
The list of horrors goes on: in the Iranian city of Lamerd, a US-made ballistic missile hit a sports hall, an adjacent elementary school and a blood transfusion center –which happened to be near a military facility. The sports hall was being used for a girls’ volleyball team at the time of the attack.
The list of Iranian targets goes on: Gandhi Hospital in Tehran, forced to evacuate its patients—newborn babies still in incubators, elderly patients in the ICU. According to the New York Times, at least 22 schools and 17 health care facilities were damaged by the American and Israeli bombardment.
Did Iran attack the United States? Did it threaten the United States? Did the US Congress authorize this war? Were there Middle East experts who said this was needed? The answer to all these questions is an obvious “No”. As far as we now understand, Benjamin Netanyahu convinced the President that overthrowing the Iranian government would be an easy win. And apparently President Trump was convinced.
So how could this happen? And how is it possible that this killing might yet continue, when according to polls 2/3 of Americans have no interest in this project?
There are no simple answers, and historians will be debating this for a long time to come.
Here are some factors that the Founding Fathers did not envision: first, the creation of vast “national security bureaucracies” inside the Executive, whose primary focus is the conduct of war; second: billion dollar businesses, who profit from the sale of weapons, with thousands of communities across the country, which depend on these companies for employment; third, the tremendous impact of money on elections. The Founding Fathers thought the legislative branch would be closer to the people and their aspirations. They did not foresee how the introduction of unchecked expenditures would produce a degree of partisanship that limited public control, and finally, they didn’t predict the impact of distractions—multiple distractions, and how this would limit public attention or engagement with matters of war and peace.
If you asked yourself what did James Madison and his colleagues expect when they wrote the constitution? They believed (or hoped) that if the country was on the precipice of war, that ordinary citizens would be sufficiently concerned to make their voices heard.
(This talk was delivered at Hofstra University on April 30, 2026).
Postscript: When it comes to this latest war with Iran, the verdict hangs in the balance. On Wednesday June 3rd, after three failed attempts, the House of Representatives voted in favor of the War Powers Resolution H. Con Res. 86 directing the President “to remove United States Armed Forces from hostilities with Iran.
This issue will now go back to the Senate within three days. The vote there will be very close.
If both Houses of Congress call for withdrawal, the President may try to avoid this requirement. However, if two Houses of Congress vote in favor of the War Powers Resolution, it will be exceptionally difficult for the Trump Administration to continue the war. For this effort to succeed, massive public pressure is required. To make that happen, people must believe that their views will count. James Madison hoped that on matters of war and peace, the public would feel empowered.
