Mike Johnson Suggests War Powers Act Is Unconstitutional

Speaker of the House Mike Johnson (R-Louisiana), an ardent loyalist to President Donald Trump, is rejecting the idea that the current commander-in-chief must adhere to the War Powers Act, a half-century-old law that is meant to rein in presidential misuse and abuse of the U.S. military.

Instead, Johnson told reporters on Tuesday that the law itself is unconstitutional, citing a dubious reading of the document.

“Many respected constitutional experts argue that the War Powers Act is itself unconstitutional,” said Johnson, without naming specific experts. “I’m persuaded by that argument.”

The speaker added that he believes the law is a “violation of the [Constitution’s] Article II powers of the commander-in-chief.”

Johnson also rejected demands for compliance with the law following Trump’s military strikes in Iran.

“The strikes on Iran’s nuclear facilities were clearly within President Trump’s Article II powers as commander-in-chief. It shouldn’t even be a dispute,” he said.

Both Congress and the president are granted some control over the use of the military. But while Johnson is correct that Article II describes the president as “commander-in-chief” of the armed forces, he has disregarded the congressional powers laid out in Article I.

Congress, for example, is the only branch of government that has the power “to declare war” — a power the institution last exercised during World War II, despite the U.S. engaging in numerous military conflicts since. Congress also has the power to “raise and support armies,” and to “make rules for the government and regulation of the land and naval forces.”

That last statement gives rise to the argument that the War Powers Act is constitutional, despite Johnson’s assertions to the contrary.

The War Powers Act stipulates time limits that presidents must adhere to when it comes to use of the military. The law, for example, only allows presidents to use military action in a specific campaign for 60 days before requiring congressional approval; for the military action to continue beyond that time frame, Congress must grant an extension of that use, pass a resolution authorizing military force, or pass a declaration of war — with some exceptions in very specific circumstances.

Trump’s use of the military to attack Iran appears to be over, well before that 60-day limit. However, he may still run afoul of the War Powers Act, as another stipulation in the law requires that every military action taken without congressional approval be reported on to leaders of Congress within 48 hours.

The law further states that:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

It also states that presidents must submit a report to the Speaker of the House and the President pro tempore of the Senate, describing the “circumstances necessitating the introduction of United States Armed Forces,” as well as the “constitutional and legislative authority” giving them the ability to take the military action, and the “estimated scope and duration of the hostilities or involvement.”

The White House did not provide any such report to those individuals.

After the attack on Iran over the last weekend, some Democratic and Republican lawmakers had a rare but brief moment of bipartisanship, suggesting that an impeachment vote be held against Trump for violating the law. But after Trump announced the ceasefire between Iran and Israel (as uneasy as it may be), Republicans supportive of that idea backed off.

“I talked to the speaker on the floor just now and told him we wouldn’t push [an impeachment resolution] if the cease-fire holds, so it’s really in their court,” Rep. Thomas Massie (R-Kentucky), who had co-sponsored an impeachment measure, said on Monday evening.

The House overwhelmingly voted to table the impeachment measure on Tuesday, with 216 Republicans and 128 Democrats — 344 legislators in total — backing that decision. Just 79 Democrats (and zero Republicans) voted to advance the measure.

Rep. Al Green (D-Texas), the author of the impeachment measure that was defeated, blasted the House’s decision to ignore the Trump administration’s blatant disregard of the War Powers Act.

“President Trump’s unilateral, unprovoked use of force without congressional authorization or notice constitutes an abuse of power when there was no imminent threat to the United States,” Green said.

Surveys have shown that most Americans are concerned about the president’s intervening actions in the Israel-Iran conflict. A recent Economist/YouGov poll, for example, shows that nearly 1 in 2 Americans (45 percent) do not believe Trump has a clear policy in mind when it comes to Iran. And a Reuters/Ipsos poll published earlier this week finds that a plurality of Americans, 45 percent, opposed the military campaign, while only 36 percent approved. That same poll found that 84 percent of Americans are concerned that the conflict between the two countries will grow.