Outside the Beltway

Trump Says War Powers Act Doesn’t Apply to Cartel Strikes

It's not an unprecedented stance.

James Joyner · Sunday, November 2, 2025 · 3 comments

WaPo (“Trump administration tells Congress war law doesn’t apply to cartel strikes“):

A top Justice Department lawyer has told lawmakers that the Trump administration can continue its lethal strikes against alleged drug traffickers in Latin America — and is not bound by a decades-old law requiring Congress to give approval for ongoing hostilities.

T. Elliot Gaiser, head of the Trump administration’s Office of Legal Counsel, made his remarks to a small group of lawmakers this week amid signs that the president may be planning to escalate the military campaign in the region, including potentially hitting targets within Venezuela.

The president needs lawmakers’ approval for sustained military action under the 1973 War Powers Resolution, which was passed in the wake of the Vietnam War to prevent another drawn-out, undeclared conflict.

A 60-day clock started ticking after the administration informed Congress on Sept. 4 that it had conducted a strike on an alleged drug boat in the Caribbean two days earlier. It has followed that with other strikes and has killed dozens of people.

The 60-day window closes Monday, and until now it had been unclear what the administration would do.

Gaiser said the administration did not believe the strikes met the definition of hostilities under the law and did not intend to seek an extension of the deadline nor Congress’s approval of ongoing action, according to three people familiar with the matter, who, like others interviewed for this article, spoke on the condition of anonymity because of the sensitivity of the matter.AI Icon

“The administration appears to be blowing through the 60-day limit,” a senior congressional aide said.

The War Powers Resolution, passed in 1973 over President Nixon’s veto, has routinely been ignored by his successors. Most have viewed it as an unconstitutional usurpation of their Constitutional role as commander-in-chief of the armed forces. Additionally, many scholars argue that it constitutes a legislative veto, which the Supreme Court ruled unconstitutional in a 1986 case called INS v. Chadha.

None of this has ever been tested in court. Quite likely, the judiciary would sidestep this as a political question.

Asked for comment, a senior administration official said the War Powers Resolution did not pertain to the current situation, because, “even at its broadest … [it] has been understood to apply to placing U.S. service-members in harm’s way.”

The official said the administration does not believe U.S. troops are in danger in the ongoing operation, so the law did not apply. “The operation comprises precise strikes conducted largely by unmanned aerial vehicles launched from naval vessels in international waters at distances too far away for the crews of the targeted vessels to endanger American personnel,” the official said in an email.

In essence, the official said, “the kinetic operations underway do not rise to the level of ‘hostilities.’”

While I’m highly skeptical of the legality of these strikes, this is actually a perfectly reasonable argument. The Obama administration made a version of it when they blew past the 60-day limit in the 2011 Libya operation. If anything, the argument today is more plausible, as we were still conducting manned overflights of Libya to conduct supression of enemy air defense missions.

National security experts challenged the administration’s interpretation.

“What they’re saying is anytime the president uses drones or any standoff weapon against someone who cannot shoot back, it’s not hostilities‚” said Brian Finucane, a former legal adviser to the State Department who is now a senior adviser for the U.S. program at the International Crisis Group. “It’s a wild claim of executive authority.”

If the government ignores the Monday deadline, he said, “it is usurping Congress’s authority over the use of military force.” Under the Constitution, only Congress can declare war.

While I fully agree that this is what the Constitution says, Presidents have been pushing the envelope on their authority to commit forces to combat as far back as Thomas Jefferson’s incursions into Tripoli during the First Barbary War.

Finucane was the War Powers Resolution lawyer at the State Department in the Obama and first Trump administrations. During that time, standoff strikes were carried out on Houthis in Yemen in 2016, as well as against Syrian military facilities in 2017 and 2018 in retaliation for President Bashar al-Assad’s use of chemical weapons against civilians. In both cases, Finucane said, the actions were considered hostilities activating the War Powers Resolution.

Both Democratic and Republican administrations over the years have “used creative interpretations of the law to skirt the deadline,” he said, but they were not targeting civilians who are not at war with the United States. “When the U.S. was bombing Libya in 2011, there was an armed conflict,” he added. “That’s not the case here.”

But that cuts both ways! If there’s not an armed conflict, then there aren’t “hostilities” under the WPA. Indeed, that’s what the Obama State Department under Hillary Clinton argued in 2011.

Congress has all manner of tools to reclaim its war powers. They have, alas, consistently failed to use them.