The Court Gutted Congress’s War Power. It’s Time to Give It Back.

The War Powers Resolution of 1973 was designed to restore the constitutional balance in decisions to commit the United States to armed conflict. Its central provision — a legislative veto enabling Congress to direct the withdrawal of American forces by concurrent resolution — was cast into legal doubt by the Supreme Court’s 1983 decision in INS v. Chadha. But Chadha was wrongly decided, its reasoning is exceptionally weak, and the Court’s subsequent embrace of functionalism in separation-of-powers cases has left it incoherent as precedent. As the United States drifts deeply into a congressionally unauthorized war with Iran, the case for overruling Chadha, or at minimum limiting it to its facts, has never been stronger. I. A Room, a Resolution, and a Forgotten Safeguard On a humid afternoon in the summer of 1973, a conference committee of House and Senate negotiators agreed, behind the closed doors of S-116 of the Capitol, to include a provision in the War Powers Resolution that, more than anything else within it, would have restored Congress’s constitutional war powers. I remember the day well because of a comment made to me as I walked out of the room with a House conferee–Representative Donald Fraser of Minnesota. As a young lawyer working for the Senate conferees, I had been an intern in his office three years earlier. “As far as I’m concerned,” Fraser said, “that’s the most important thing in this Resolution.” He was right—or at least he could have been. The provision in question is Section 5(c) of the Resolution, the so-called legislative veto. A legislative veto is a statutory mechanxism that gives legal effect to a measure adopted by Congress without submitting it to the President for signature or veto. Section 5(c) provides that the President shall remove American armed forces from “hostilities” upon the adoption of a concurrent resolution directing him to do so. A concurrent resolution takes effect immediately upon adoption by both Houses without presentation to the President. That provision could be used today by Congress to halt an unauthorized war—as Representatives Ro Khanna and Thomas Massie attempted on March 5 in the House of Representatives (losing, 219-212). It could be, that is, had the Supreme Court not cast its validity into doubt ten years after the Resolution’s enactment. The case that did so, INS v. Chadha, decided in 1983, has itself since fallen into legal difficulty, because the Court has subsequently adopted a functionalist approach to separation-of-powers questions—one at odds with the rigid formalism that animated Chadha‘s logic. The case should now be overruled, or at minimum, held inapplicable to the legislative veto embedded in Section 5(c) of the War Powers Resolution. II. The Constitutional Architecture of War and its Distortion The Constitution’s Framers made a deliberate choice: it should be harder to enter a war than to exit one. They vested the power to declare war in Congress, exercisable by simple majority vote. The president, as commander in chief, would direct the forces that Congress authorized and funded. But the president could not summon armies into existence by executive will alone. In the early republic, as the constitutional scholar Michael McConnell has observed, the United States maintained only a negligible standing army. Presidential adventurism required not merely legal authority but appropriated funds for assembled forces—a structural check that concentrated political accountability with Congress, where the Framers intended. That equilibrium eroded steadily through the twentieth century, accelerated by the Korean and Vietnam conflicts. The former was prosecuted without congressional approval, the latter on the basis of fallacious factual assurances that led to the infamous 1964 Gulf of Tonkin Resolution. By 1973, Congress confronted an acute institutional dilemma: it wished to end American involvement in Vietnam and neighboring Cambodia, but presidential veto threats meant that doing so required a two-thirds supermajority in each chamber to override. The standard for terminating an unauthorized war had become, paradoxically, more demanding than the standard for authorizing one. Section 5(c)’s legislative veto was designed precisely to correct that constitutional inversion. Under it, the same simple majority sufficient to authorize force would suffice to call it back. The War Powers Resolution was presented to President Nixon for his signature. He vetoed it. On November 7, 1973, the Senate followed the House in overriding his veto, and it became law. (I was present in the Senate chamber that day; whatever Vice President Vance may now claim, the Resolution is neither “fake” nor unconstitutional—it is the duly enacted law of the United States, sustained over presidential objection by a constitutionally prescribed supermajority.) Section 5(c) thus derives its authority not from some procedural sleight-of-hand but from the same majoritarian process the Constitution contemplates. III. What Chada Did — and Did Not — Decide Chief Justice Warren Burger’s majority opinion in INS v. Chadha (1983) was, by almost any measure, breathtaking in its reach. The case itself arose from a narrow, technical question: whether either House of Congress could overturn the Attorney General’s suspension of a deportation order—a textbook example of a legislative veto applied to a congressionally delegated power. The Court held that procedure unconstitutional, grounding its analysis in the Presentment Clause and the principle of bicameralism. Justice Byron White’s dissent catalogued the consequences with characteristic precision. Nearly two hundred federal statutes fell within the majority opinion’s sweep. White wrote that the decision “strikes down in one fell swoop provisions in more laws enacted by Congress than the Court has cumulatively invalidated in its history.” Among the casualties were legislative vetoes in the War Powers Resolution, the Impoundment Control Act, the National Emergencies Act, the Nuclear Non-Proliferation Act, the Arms Export Control Act, the Trade Act of 1974, and the Export Administration Act of 1979. These measures were not novel legislative improvisations. Legislative vetoes had emerged in governmental reorganization legislation in the 1920s. During the Second World War alone, Congress enacted more than thirty statutes conferring powers on the President with legislative veto provisions attached. In the decades that followed, nearly all of the approximately two hundred statutes containing them were signed into law without executive objection—remarkable evidence of interbranch acquiescence that Burger’s opinion disregarded. What’s more, Burger failed to distinguish among very different types of legislative vetoes that pose very different constitutional questions. The veto at issue in Chadha was the most common variant: Congress delegates authority to the executive and then reserves the right to retract it. But Section 5(c) of the War Powers Resolution is structurally distinct. The Resolution delegates nothing. It explicitly provides that nothing in it “may be construed as granting any authority to the President… he would not have had” in its absence. Section 5(c) does not retract delegated authority: it marshals Congress’s own constitutional power against an executive exercise of overlapping—or, in the terminology of the Framers’ design, concurrent—constitutional authority. Justice Lewis Powell recognized this distinction. Concurring separately, Powell declined to reach the broad constitutional question Burger’s majority addressed. He referred explicitly to the War Powers Resolution and observed that the validity of a legislative veto “may well turn on the particular context in which it is exercised.” He would, he said, “be hesitant to conclude that every [legislative] veto is unconstitutional on the basis of the unusual example presented in this litigation.” Justice White, too, noted in dissent that the war powers context was categorically different. The distinction is not merely taxonomic. It tracks Justice Robert Jackson’s tripartite framework from his celebrated concurrence in the 1952 Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer). Under Jackson’s analysis, presidential power reaches its “lowest ebb” when the executive acts in opposition to the express or implied will of Congress. Section 5(c) establishes a mechanism by which Congress expresses exactly that will. Nowhere in his Chadha opinion did Chief Justice Burger seek to reconcile his dismissal of congressional authority with Jackson’s framework, which had been embraced by the full Court in Dames & Moore v. Regan (1981) and applied repeatedly in subsequent cases. The omission is glaring. Much of the legislative conduct from which the Youngstown majority inferred congressional disapproval consisted of sub-legislative action—procedural votes, committee decisions, the mere failure to enact particular bills—that by its nature could never have been subject to a presidential veto. If such informal congressional signals can reduce presidential authority to its lowest ebb, why should the adoption of a concurrent resolution under Section 5(c) not do so? Burger offered no answer. He did not attempt one. IV. The Functionalism the Court Has Since Embraced The Burger Court dismissed the relevance of legislative practice with the observation that the Court’s inquiry was “sharpened rather than blunted by the fact that congressional veto provisions are appearing with greater frequency.” Its reasoning was never persuasive. It is less so today. In the decades since Chadha, the Supreme Court has repeatedly and emphatically endorsed constitutional practice as a source of interpretive authority in precisely the structural cases where Chadha‘s formalism would deny it. In NLRB v. Noel Canning (2014), construing the Recess Appointments Clause, the Court held that “long settled and established practice” is entitled to “great weight” in interpreting constitutional provisions regulating the relationship between Congress and the President. In Zivotofsky v. Kerry (2015), the Court put “significant weight upon historical practice” in defining the scope of presidential recognition authority. In Houston Community College System v. Wilson (2022), the Court reiterated that “long settled and established practice is a consideration of great weight” when constitutional meaning or application is at issue. And in Medellín v. Texas (2008), the Court declined to recognize a presidential power partly on the ground that no “systematic, unbroken, executive practice” supported it. Each of these cases teaches a principle that Chadha explicitly rejected: that interbranch practice, when longstanding, systematic, and acquiesced in by the other branch, constitutes authoritative gloss on otherwise ambiguous constitutional text. Congress’s use of legislative vetoes easily satisfies that standard. The practice is a century old. It was sustained across administrations of both parties. It was incorporated into landmark legislation signed into law, without challenge, by multiple presidents. While presidents occasionally objected, for fifty years, through ten administrations, the Executive consistently participated in and implemented the legislative veto system. That functional reality–the Constitution in practice–defines the operative meaning of separation of powers far more reliably than sporadic, boilerplate signing statements. The constitutional landscape in which Section 5(c) sits should therefore have been understood as supporting the provision’s constitutionality at the time Chadha was decided. Since then it has shifted even more favorably. The Court today does not dismiss practice as irrelevant; it weighs practice heavily. Chadha‘s premise—that congressional custom is irrelevant to constitutional interpretation—has been progressively undermined by the Court’s own subsequent decisions. The case is not merely dated; it is inconsistent with the interpretive method the Court now applies. V. The Case For Overruling — or Limiting — Chada A constitutional precedent warrants reconsideration when its reasoning is “exceptionally weak,” when it has produced a “distorting effect” on the development of related doctrine, or when it is, in the Court’s recent formulation, “egregiously wrong.” The Court set out these criteria in Dobbs v. Jackson Women’s Health Organization (2022), overruling Roe v. Wade. All of them are met for Chadha. Chief Justice Burger’s opinion failed to engage with the Constitution’s text on its own terms. The Presentment Clause requires that every “bill” passed by both Houses “before it becomes a law” be presented to the President. The Clause also extends to “every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary.” Burger read these provisions as categorically precluding all concurrent resolutions from having legal effect. But this was not the Framers’ intent. The Clause is intended to prevent bolt-out-of-the-blue legislative vetoes–”unpresented” measures adopted with no statutory tie-in that purport to have legal effect by their own force. Congress cannot, in other words, call a bill something other than a bill–an order, vote, or resolution–for the purpose of evading a presidential veto. This obviously is not what Congress did in the War Powers Resolution. Congress did not circumvent the President: the War Powers Resolution was presented to him. He vetoed it. Congress overrode that veto. A concurrent resolution adopted pursuant to Section 5(c) would derive legal force from a duly enacted statute—not from a procedural evasion of presidential authority, but from the most demanding democratic process the Constitution prescribes. The distortion runs deeper. By invalidating the legislative veto categorically—without distinguishing vetoes that retract delegated authority from vetoes that assert concurrent constitutional power—Chadha created a doctrinal anomaly. Presidents may now exercise military force that Congress has not authorized, for as long as they choose, subject only to Congress’s ability to muster a veto-proof supermajority in both chambers—a threshold the Framers reserved for the most extraordinary of circumstances. The Constitution’s design has been inverted. Getting into war requires a simple majority; getting out now requires a supermajority. No principle of constitutional structure can justify that outcome. Stare decisis is “at its weakest” in constitutional interpretation, the Court has repeatedly acknowledged. A mistaken statutory decision does not embed itself into private expectations or settled commercial arrangements in the way a mistaken constitutional interpretation might. Chadha’s interpretation of the Constitution is egregiously wrong. Its interpretive method has been rejected in subsequent decisions. It distorts the Constitution’s allocation of the war power. The Court should overrule it. If the Court declines to overrule Chadha entirely, it should at minimum distinguish it on the grounds Justice Powell identified. Legislative vetoes applied to congressionally delegated powers—the scenario Chadha actually addressed—present different constitutional questions from legislative vetoes asserting concurrent constitutional authority over a power, like war, that the Constitution explicitly divides between the two political branches. Section 5(c) belongs firmly in the latter category. Limiting Chadha to its facts would restore the constitutional balance without requiring the Court to abandon the case altogether. VI. The Stakes The urgency of this question is not theoretical. Recall, again, the words of Vice President JD Vance. Casting the tie-breaking vote to defeat a bipartisan Senate war powers resolution in January 2026, he declared that the War Powers Act is “fundamentally a fake and unconstitutional law” that would “not change anything about how we conduct foreign policy.” The military operations against Venezuela that prompted that vote proceeded without any meaningful congressional authorization. The administration has since plunged the nation into a full-fledged war with Iran that has escalated into a regional conflagration, triggering growing military and civilian casualties, spiking oil and gas prices, widespread economic dislocation, surging refugee flows, and the specter of a failed Iranian state. Further, the administration has signalled that it may next turn to forcibly toppling Cuba’s government. Congressional efforts to curb unilateral executive warmaking appear likely to continue. In this environment, the argument that the president may wage war unilaterally at any time against any country for any reason, free from any congressional check, represents—in the words of the Supreme Court’s recent tariff decision—”a transformative expansion of the President’s authority” that the constitutional structure does not support. Justice Neil Gorsuch captured the reason why the legislative process must remain central to decisions of this gravity: It can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man…. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. Nowhere is the deliberative process more essential than in the decision to remain in an unauthorized war. Section 5(c)’s legislative veto was designed to preserve that process—to ensure that a simple majority of the people’s representatives could call the armed forces back from military action Congress has not approved. Overruling Chadha would not, by itself, guarantee that Congress will play its constitutionally mandated role in warmaking. Institutional failure of that kind cannot be cured by judicial decision alone; it requires the will and the courage of Congress’s own members. But the Court’s intervention would remove a significant legal obstacle—one that has shackled Congress for more than four decades while executive power over war has expanded dramatically. The constitutional structure the Framers designed placed the power to make war in the institution most directly accountable to the people, and most deliberate in its decisions. The Court has the authority and the obligation to restore that design. It is time to do so.