On September 4, President Donald Trump sent a letter to Congress in accordance with the War Powers Resolution to report on the September 2 military strike on a vessel in the Caribbean Sea, targeting and killing 11 individuals allegedly engaged in illicit drug trafficking. Since then, the U.S. military has carried out at least 13 additional attacks on vessels in the Caribbean Sea and eastern Pacific, killing more than 60 people that the administration asserts were trafficking drugs into the United States. We focus here on one slice of the domestic legal issues these strikes raise: the statutory requirement that the Executive Branch cease any use of military force without Congressional authorization past Monday, when the War Powers Resolution’s “60-day clock” runs out.
The clock does not authorize force; it is an additional statutory constraint along with the reporting requirements built into the War Powers Resolution. In other words, even when a president is acting under his or her constitutional authority to use force, the statute requires that the operations terminate after 60 days if Congress has not yet approved of the operations.
As former State Department lawyers, both of us have advised Executive Branch officials on the use of force, including the interpretation and applicability of the War Powers Resolution. We have advised policymakers inside the State Department, worked with counterparts at DoD, DOJ, and the intelligence community, and participated in the National Security Council-led interagency Lawyers Group process for coordinating legal views among the national security agencies. (This interagency process was recently described on Just Security by former DoD lawyer Sarah Harrison and former Navy JAG Mark Nevitt.) While past administrations of both parties have contributed to the expansion of the President’s claims to unilateral war-making authority and have often found ways to circumvent the requirements in the War Powers Resolution, this administration’s action – in both substance and messaging – represents an unprecedented expansion of Executive Branch authority over the use of force.
Background on the 60-Day Clock
The War Powers Resolution, enacted in 1973 over President Nixon’s veto, was designed to reassert Congress’ constitutional role in authorizing military action while regulating the president’s conduct in those circumstances where the Executive claims constitutional authority to introduce U.S. forces into hostilities. Nothing in the War Powers Resolution authorizes the use of force. Instead, the clock and the reporting and consultation requirements are additional statutory requirements that all presidents must follow when using force without Congressional authorization as President Trump is doing in this case.
In addition to its well-known 48-hour reporting requirements, the War Powers Resolution includes a provision known as the “60-day clock.” In short, within 60 calendar days after a 48-hour report is submitted (or was required to have been submitted) on the introduction of U.S. armed forces into hostilities or imminent hostilities, the President shall terminate any such use of the armed forces unless Congress (1) has declared war or enacted a specific authorization for such use of force; (2) has extended by law the 60-day period; or (3) is physically unable to meet as a result of an armed attack on the United States. None of these things have happened here.
The War Powers Resolution allows the President to extend the 60-day period by an additional 30 days if the President determines and certifies to Congress that “unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.” Unsurprisingly given the prompt removal requirement, the President has not made this certification. This means that, by operation of law, the administration must terminate the use of U.S. armed forces in hostilities against suspected narcotraffickers in the Caribbean and eastern Pacific by Monday, 60 days after the September 4 report was submitted.
We do not expect the President to terminate this use of force per this requirement. He and Secretary Pete Hegseth have made very clear these strikes will continue. But we would expect that Executive Branch lawyers advising the President and other senior policy officials would have informed them about the clock, likely when the decision was made to submit a War Powers Report in early September. (We should note that, to our knowledge, no additional 48-hour reports have been submitted since September 4. At least one notice under section 1230 of the FY 2024 NDAA was subsequently submitted, and it is possible that additional reports under section 1230, or under other reporting requirements like 10 U.S.C. 130f, have been submitted to Congress that have not been made public).
Past Interpretations of the Applicability of the 60-Day Clock
Historically, although presidents have not always conceded that Congress’ limitations on their use of force through the War Powers Resolution are constitutional, they have typically acted in accordance with its strictures. (As noted above, even this administration filed the required 48-hours report following the first strike “consistent with” the War Powers Resolution.) And past administrations have typically gone to great lengths to assert their actions were not in violation of the clock, even in circumstances when a sustained military campaign has clearly lasted longer than 60 days without congressional authorization. Those situations in which presidents have interpreted the clock or other portions of the War Powers Resolution loosely or have stretched to find a statutory authority to permit continued operation are relatively well-known, and we will not rehash them in great detail here. Rather, our goal is to make clear that those prior approaches and attempted end runs – whatever one may think of their validity – are not available in this case.
When it comes to the War Powers Resolution, presidential administrations have taken a number of different approaches, depending on the factual circumstances. For example, in Libya in 2011, where U.S. forces were operating as part of a multinational coalition in accordance with a UN Security Council resolution to protect civilians under threat from Muammar Qadhafi, President Barack Obama did not pull U.S. forces back entirely for approximately seven months. Congress called hearings demanding the administration explain its actions. Under pressure, U.S. officials argued that the use of force did not constitute “hostilities” for purposes of the War Powers Resolution because the U.S. military was acting in a supporting role as part of an integrated NATO command and was using air power rather than ground troops, among a number of other factors. (Although “hostilities” is not defined in the statute, it has long been understood by the Executive Branch to mean a situation in which U.S. armed forces are engaged in exchanges of fire with opposing forces, despite a discussion of the term in the War Powers Resolution’s legislative history that would yield a broader understanding.) That argument received significant pushback in the legal community – a useful example of Jameel Jaffer’s argument on the importance of timely release of the President’s legal theory, so that the public can assess it in real time. It is also an example of one of the many muscles Congress can flex, simply calling hearings and demanding the President’s legal theory, when members wish to do so.
Another approach used in multiple circumstances is the “salami slicing” approach, as our former State Department colleague Brian Finucane has described it. For example, in the ten-month operation against Iran from 1987 to 1988 as part of the Tanker Wars, and the military operations against Iran-aligned militia groups in Iraq and Syria from 2021 to 2024, the Executive Branch characterized attacks that occurred over a months- or years-long period without congressional authorization as discrete episodic events. That understanding in effect reset the clock with each strike. In some cases, several months went by between strikes by U.S. forces, while in other instances there were just weeks between strikes.
In the most recent example of sustained military operations without congressional authorization prior to these boat strikes, after initially filing four War Powers Reports in January and February 2024, the Biden administration stopped filing and ultimately continued military operations against the Houthis well past 60 days without congressional authorization. While various commentators have speculated on potential legal arguments, no formal legal justification was publicly provided, and military operations in Yemen against the Houthis continued throughout 2024 and into 2025.
One final approach has been to seek to avoid the applicability of the War Powers Resolution altogether by asserting that an existing statutory authority applies. For example, in 2014, the Obama administration initially submitted several War Powers Reports in the opening phases of the military campaign against ISIS on the assertion that the President was acting under his constitutional authority. The administration later took the position that military operations against ISIS were also authorized under the 2001 Authorization for Use of Military Force, a statute passed in the wake of the September 11 attacks.
It is clear that none of these approaches are available to the Trump administration in this case. The administration is making no argument that the lethal kinetic attacks killing more than 60 alleged narcotraffickers are not hostilities (see former OLC attorney Marty Lederman’s discussion) – indeed, they’ve gone further to argue that the United States is engaged in a non-international armed conflict with a publicly unnamed list of cartel groups. There is also no plausible argument that these strikes are isolated, episodic events, given that they are often occurring within days (and in some cases hours) of each other, and the President and Secretary of Defense have made clear they are part of an ongoing campaign. And finally, there is no existing statute that authorizes the President to use force against any of the groups the President has named in these strikes or against drug smugglers generally.
It is quite possible that the Executive Branch will remain silent in the face of the clock’s deadline, and refuse to justify its lack of compliance with the Resolution. Another possible outcome is that the Trump administration, like President Nixon when he tried to veto the bill and later the Reagan administration, will affirmatively make the case that the 60-day clock is an unconstitutional infringement on the President’s Commander-in-Chief authority. However, even when prior administrations took the position that the clock was unconstitutional or raised other concerns about the War Powers Resolution, they continued to report to Congress “consistent with” the Resolution in a clear acknowledgment of Congress’ important role in authorizing the use of force. And congressional pushback has been effective in forcing past presidents both to explain their actions and even to constrain them.
So What Now?
Members of Congress have begun to step in and seek to fulfil their constitutional role in deciding if and when to use force, and regulating that force when the President claims power to act under his own constitutional authority. Steps can include classified briefings and holding open hearings to press administration officials on their legal theories, including specific questions on why the 60-day clock does not require the strikes against suspected narcotraffickers to end. Congress can also publicize other reports the Executive Branch has submitted to Congress (if any), and can continue to demand the public release of the reported Office of Legal Counsel memo, in redacted form as necessary. Finally, work on the joint resolution that recently narrowly failed in the Senate by a 48-51 vote should continue, on a bipartisan basis, to pass a joint resolution that reasserts Congress’ rightful role. For example, Senator Todd Young (R-Ind.) explained that he voted against that resolution because it was not geographically limited and could, in his view, potentially prohibit the use of force against radical Islamist terrorist groups in the Middle East. There should be a legislative fix that can accommodate that concern.
Under past administrations, lawyers and policymakers inside the Executive have exercised oversight over the use of force. It is quite possible that members of Congress have grown to rely on those internal constraints and have lost their muscle memory to check the President themselves. This 60-day deadline is a stark reminder that Congress has exercised its voice in the past, and that its action and oversight are vital.
