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Tom Campbell: A practical path to reclaiming congressional war powers

May 6, 2026

Our country needs a definitive and practical resolution that includes a role for Congress regarding going to war. At present, we have neither.

As long as there is money in the military budgets, the president does not seem to need Congress. Through the budget reconciliation bill and the “One Big Beautiful Bill,” current national security appropriations total almost $1 trillion.

No member of Congress who voted for that money was voting to go to war in Iran. No one even thought an Iranian war was imminent. When the trillion dollars runs low, the push to replenish our stockpiles will be premised not on the wisdom of any specific war, but on the need to be ready for the next one, which no one can yet foresee.

This argument about replenishing the stockpiles was precisely the argument made by President Bill Clinton to fund America’s war over Kosovo, even though the House voted 427 to 2 against declaring war.

In 1973, because of Vietnam, our country adopted a means of involving Congress in Presidential wars. Congress passed the War Powers Act over President Nixon’s veto. The law gives a president 60 days to put our armed services into “hostilities” but requires affirmative approval by Congress thereafter.

This law recognized the need for confidentiality before a military action; but, after two months, the element of surprise becomes irrelevant. If the president ignores the 60-day limit, a federal court can rule that he is in violation of the law. It can’t force him to stop. However, the U.S. Supreme Court couldn’t force President Richard Nixon to hand over the Watergate tapes, but he did so rather than defy the highest legal authority in our country. Today, were President Trump to continue the war in Iran after the Supreme Court ruled the War Powers Act required him to stop, he would precipitate a constitutional crisis.

There are decent arguments for and against constitutionality, but America has only one way to reach a definitive conclusion when political branches clash: that is for the federal courts to decide. That’s how we ended segregation – because federal courts showed the courage to take the case and decide it.

Nevertheless, a federal judge might prefer to dodge the issue. A federal trial judge who even agrees to hear a case on the War Powers Act jeopardizes her or his chances ever to be promoted to the court of appeals by any president in the future, regardless of political party.

Presidents have claimed courts can avoid ruling in cases like this by holding that members of Congress lack standing to sue. Yet federal courts have granted standing to members of Congress many times. Senator Barry Goldwater sued President Jimmy Carter over abrogating our treaty with Taiwan. The House of Representatives sued over Obamacare. Senator Ted Kennedy sued when President Nixon pocket-vetoed federal money for medical schools.

Another dodge is to call this a “political question,” though courts have for years ruled on deeply political issues like partisan gerrymandering, affirmative action, abortion, and gay rights.

The truth is federal courts can decide the constitutionality of the War Powers Act, if they have the courage to do so. If it is constitutional, then let’s get a vote in Congress: Congress might approve, as it did when Presidents Bush I and II requested support in their Middle East wars. If the law is unconstitutional, however, then America needs to devise another mechanism to restore the balance; such as passing military appropriation bills of shorter durations, so the president has to seek congressional support during a war.

To fail to decide whether the War Powers Act applies, however, leaves our country with no solution to the war powers question, short of the president always getting his way.

Tom Campbell is a professor of law and a professor of economics at Chapman University. He was a Congressman for five terms and the author of a constitutional law text, “Separation of Powers in Practice.” In 1999, he led a bipartisan group of U.S. Congressmembers who sued President Clinton over going to war over Kosovo without Congressional authority.

Orange County Register

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Tom Campbell: A practical path to reclaiming congressional war powers

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