I spent nearly six years in Vietnam. Most of that time was passed watching young American men fight and die under a legal fiction so thin it barely deserved the name: the Tonkin Gulf Resolution.
There was no declaration of war. There didn’t need to be. The Johnson administration manufactured a naval incident, then sold Congress and the country a story that bore only a passing resemblance to what had happened in those waters.
An encounter between North Vietnamese patrol boats and American surveillance vessels — an encounter that was murkier, smaller, and more provoked than the White House ever let on — became, in the retelling, an unprovoked act of aggression against the United States.
Congress, stampeded by that narrative, handed the executive branch a blank check. Everything that followed — the troop escalations, the body counts, the years I spent watching the war consume part of a generation — flowed from that single manufactured moment and the jury-rigged legal authority it produced.
I have never lost my sensitivity to the sound of that particular door creaking open again. So, when a former Homeland Security Secretary and Pentagon General Counsel goes on national television and says, bluntly, that the constitutional balance between Congress and the presidency on matters of war is broken, I listen closely.
That is what Jeh Johnson told the hosts of Morning Joe a few days ago, on July 9, and in doing so he reopened one of the oldest, least settled questions in American government: who gets to take this country to war.
Most Americans, if you stopped them on the street, would give you a simple answer. The president is commander-in-chief. When force is required, he orders it. That is common practice, and it has been for decades.
But it is not what the Constitution says. Article I, Section 8 gives the power to declare war to Congress, not to the president. The framers were wary of concentrating that decision in a single person, so they placed it deliberately in the hands of the people’s elected representatives. The president commands the military once war is declared. Congress decides whether the nation goes to war in the first place. That was the design.
Jeh Johnson’s argument is that the design has collapsed. And the historical record backs him up.
The United States has formally declared war only five times despite deploying forces abroad hundreds of times over its history. Congress last passed a specific Authorization for the Use of Military Force in 2002, ahead of the Iraq invasion. Every administration since then has leaned on increasingly elastic readings of executive power rather than going back to Capitol Hill for fresh authorization.
What strikes me most is Johnson’s diagnosis of why Congress has retreated. It isn’t constitutional humility. It’s political self-preservation.
A vote to authorize war is a vote with no guaranteed outcome and a long memory attached to it. Ask Hillary Clinton, whose 2002 Iraq authorization vote became a defining liability in 2008 while Barack Obama’s opposition became a defining asset.
Members of Congress drew the obvious lesson: it is safer to let the president act and reserve the right to criticize him later than to cast a vote that might come back to haunt a campaign a decade on.
The irony is that Congress’s abdication hasn’t always been for lack of being asked. In 2013, after the Assad regime used chemical weapons in Syria, Obama sought congressional authorization for strikes. A year and a half later he asked again, this time for authority against ISIS. Both times, Congress ultimately let the request die — once without a vote, once after years of debate that never reached one.
Jeh Johnson treats those two non-decisions as the hinge point. Rather than exercise its constitutional role, Congress left the executive branch to define, on its own, the scope of its own war-making power.
Lawyers filled the vacuum Congress left behind. The Justice Department’s Office of Legal Counsel, across administrations of both parties, built out an increasingly permissive theory of unilateral presidential authority.
The watershed opinion came in 2011, when the Obama administration decided it could intervene militarily in Libya because the operation served the national interest and, in its “nature, scope, and duration,” didn’t rise to the level of a full-scale war requiring congressional sign-off.
That same framework was later stretched to cover Obama’s air campaign against ISIS. Trump relied on it again in 2018 for the missile strikes on Syrian chemical weapons facilities. By the time he ordered the drone strike that killed Iranian General Qasem Soleimani in January 2020, the legal architecture was already built and waiting. No new authority was sought. None was thought necessary.
The one statute designed to check all of this — the War Powers Resolution, passed over Nixon’s veto in 1973 amid the final throes of the Vietnam conflict — has proven toothless in practice.
It requires a president to seek congressional approval or wind down military operations within sixty days. But Congress has shown little appetite to enforce it, presidents of both parties have resisted its constraints, and the courts have consistently waved off disputes over war powers as political questions beyond their reach.
Jeh Johnson doesn’t want to resurrect that law. He thinks it has already failed. His preference is the bipartisan War Powers Consultation Act, initially championed by Senators John McCain, Tim Kaine, and Angus King. If passed, it would repeal the 1973 statute while preserving a president’s ability to respond to genuine emergencies, but it would also force structured consultation with Congress and, critically, compel an actual vote on sustained operations rather than allowing legislators to hide behind silence.
That last point is the heart of it for me. Johnson isn’t only indicting the presidency for grabbing power. He’s indicting Congress for handing it over, deliberately, again and again, because abdication is politically safer than accountability.
The current moment makes his argument impossible to dismiss as academic. That’s because the pattern has sharpened under the second Trump administration, though the legal packaging keeps shifting.
In the Caribbean, strikes against suspected narcotics traffickers have been justified on the theory that the United States is in an armed conflict with designated criminal organizations. This rationale treats people on targeted vessels not as criminal suspects to be arrested, but as enemy combatants who can be killed without congressional authorization.
The operation that seized Venezuelan President Nicolás Maduro was built on the opposite legal theory: not war, but law enforcement. It relied on a criminal arrest warrant executed with overwhelming military force, framed that way specifically so that war-powers constraints would not apply.
Different theories, same practical effect: momentous uses of force proceeding without Congress ever explicitly weighing in, while lawmakers confine themselves to praising or condemning decisions only after they’ve already been made.
Nowhere is that clearer than in the Iran campaign, and nowhere does the echo of the Tonkin Gulf ring louder for me personally.
Trump has offered essentially no formal legal rationale for the Iran strikes, no statute, no specific authorization, nothing beyond an assertion of inherent Article II power.
Asked directly about the limits of his war-making authority, Trump’s answer was not lawyerly hedging. It was categorical: “There are no limits.”
Even past administrations that pushed the boundaries of executive war power at least bothered to produce a legal memorandum, however strained, invoking self-defense or an old AUMF or a national-interest theory.
This White House hasn’t bothered with the pretense. That, to me, is a more honest but also more alarming admission than anything Lyndon Johnson’s people ever said out loud about Tonkin Gulf.
Compliance with the War Powers Resolution has followed the same pattern of going through the motions rather than the substance.
Strikes happen. The Gang of Eight receives a courtesy notification shortly before or after the fact — not consultation, notification. When the sixty-day clock becomes inconvenient, the administration simply declares that hostilities have ended and the clock is therefore moot.
A White House official made exactly that argument after Congress passed a resolution in June directing President Trump to remove forces from hostilities against Iran. The official asserted there were “no hostilities from which to remove US forces” because a ceasefire had taken hold in April.
Days later, strikes resumed.
The tactic works precisely because the bedrock War Powers Resolution has no enforcement mechanism beyond Congress’s own political will, and the courts have made clear they will not supply what Congress won’t demand for itself.
What actually happened on Capitol Hill this time deserves more attention than it has gotten, because it is genuinely unusual.
Both chambers of Congress passed a resolution directing the president to withdraw forces, the first concurrent war powers resolution ever to clear both chambers. The House vote was 215 to 208, with four Republicans crossing over. The Senate followed, 50 to 48, with four more GOP defections.
That was a bipartisan rebuke, and it happened in an environment where bipartisan anything has become rare.
But concurrent resolutions, unlike the joint resolution Congress used against Yemen in 2019, never go to the president at all. By design, they carry no force of law and require no signature. They are symbolic from the moment they’re drafted.
So, this gesture, though refreshingly bipartisan, had zero binding effect. It was precisely the kind of vote that lets individual members say they went on record while changing nothing about what the executive branch actually does.
Trump’s response to the defectors was telling in its own right. He didn’t engage the constitutional argument. He called them “grandstanders.”
That is not the language of someone who feels obligated to answer a legal challenge. It is the language of someone applying political pressure to wavering members of his own party, because he knows there is no serious legal counterargument required.
The Iran vote was not an outlier. It has become the median case.
The same Congress that passed this symbolic resolution on Iran had declined to advance war-powers measures after the Maduro operation. There was almost no congressional debate over a Christmas Day bombing in Nigeria. Efforts to even terminate strikes against civilian vessels in the Caribbean and Eastern Pacific have struggled to find bipartisan traction.
It is also worth remembering that in 2019, during Trump’s first term, this very Congress did pass a War Powers Resolution over Yemen. It was a joint measure, not a concurrent one, meaning it had real teeth, binding force, a path to the president’s desk. It was the first time either chamber had invoked the Act with the force it was meant to have, to try to stop a foreign conflict.
Trump vetoed it, and the override vote fell well short.
Even then, a historic vote with actual legal weight behind it couldn’t survive a veto.
Congress didn’t just lose that fight in 2019. It hasn’t picked up the same weapon since. It no longer even reaches for a resolution of the joint variety that could force a president’s hand. It settles for a concurrent resolution that never asks him to answer at all.
I know such details drag us into the weeds and are hard to bend your mind around. But it’s down there in the weeds, almost unnoticed, that the separation of powers is dying and an aggressively autocratic presidency has taken root.
I think about that every time I think back to 1964.
The Tonkin Gulf Resolution passed the Senate 88 to 2. It passed unanimously in the House. There was no bipartisan rebuke, no defectors to call grandstanders, because almost no one objected.
The result: Vietnam.
Measured against that, today’s split votes and symbolic resolutions might look like progress. But a resolution with no binding force is not a check. It is a paper trail. And paper trails did not stop the war I watched destroy so many lives.
They will not stop the next bloodbath either, unless Congress decides that voting yes or no before American soldiers are sent into harm’s way is a responsibility worth the political risk it carries, the same risk we have always asked soldiers to bear without complaint.
The Constitution never intended for one branch to lead and the other to merely react.
It intended shared responsibility: presidential command paired with congressional consent, deliberately, before the fact, not as commentary afterward.
Restoring that balance will take more than a new legal theory from the Office of Legal Counsel or a better-drafted statute to replace the one from 1973. It will take a Congress willing to reclaim a responsibility it has spent sixty years finding reasons to avoid.
Until it does, every new conflict will carry the same shadow the nation has carried since the Tonkin Gulf, the shadow of a war justified after the fact by a story that didn’t hold up, and a legislature that signed off without asking hard enough questions first.
Main Sources:
- Congressional Research Service—War Powers Resolution Procedures
- Congressional Research Service—Understanding the War Powers Resolution
- Congress.gov legislative history of the Yemen Resolution (S.J.Res.7)
- U.S. Senate veto archive
- Office of the Historian—Gulf of Tonkin Resolution
- Cornell Constitution Annotated—War Powers