Secretary of State Marco Rubio says he “loves” talking about the War Powers Act. What he seems to love more is the chance to do what Richard Nixon did first: pronounce it unconstitutional.
At the close of an hourlong White House briefing on Tuesday, Rubio declared the landmark post-Vietnam law “100 percent unconstitutional.” In a rarely blunt moment, Rubio offered one of the Trump administration’s clearest rejections yet of Congress’ authority to restrain the president’s use of military force.
“Now this is not the position of me, not the position of the president United States. This is the position of every single president that has occupied this position since the day that law passed. It’s completely unconstitutional,” said Rubio.
Rubio’s position was not simply a Trump-era provocation. It was the bluntest expression of a bipartisan habit presidents have practiced for decades: notifying Congress, briefing lawmakers and preserving the appearance of consultation while resisting Congress’ power to say no.
In Washington, presidents have long found ways to work around the War Powers framework. Rubio’s remarks put into plain language what decades of practice have gradually normalized: Congress is informed, but not treated as a coequal branch of government.
That history complicates the Democratic critique. The party now pressing to use the War Powers Act against Trump also produced one of the clearest modern examples of evasion, when Bill Clinton continued the NATO air campaign against Yugoslavia without explicit congressional authorization.
Was Rubio right? The answer is both more complicated and more revealing than his formulation allowed. Trump’s defenders and Clinton’s heirs may not like the comparison, but on war powers, the two presidents occupy more common ground than either side might admit.
The recurring fight
The constitutional design is deliberately divided: Congress authorizes war; the president conducts it.
War-powers fights are hardly new. They have flared across administrations and conflicts — from Vietnam to the former Yugoslavia, Bosnia and Kosovo, Iraq, Haiti and the military response to the September 11 attacks.
The law was born from Vietnam and the Congress’ anger at being bypassed. Congressional frustrations peaked during President Nixon’s administration, when secret bombings of Cambodia during the Vietnam War were ordered without congressional consent. Congress passed the War Powers Resolution in 1973 to limit unilateral presidential war-making and reassert its role over U.S. involvement in foreign conflicts.
President Nixon vetoed the bill. In his 1973 veto message, Nixon said the restrictions the War Powers Resolution would impose on the president were “both unconstitutional and dangerous.” Congress overrode his veto and enacted the law anyway.
Every president since the law’s enactment has argued that the War Powers Resolution infringes on the president’s commander-in-chief authority, and the courts have not directly resolved the constitutional question. But that does not mean every president has publicly declared the entire statute “100 percent unconstitutional” the way Rubio did. The recurring fight has often centered on the law’s withdrawal mechanism and its application to specific operations.
The law says the president may introduce U.S. forces into “hostilities” or “imminent hostilities” only with a declaration of war, specific congressional authorization, or a national emergency caused by an attack on the U.S. or its forces. It also requires consultation with Congress when possible and written reports when forces are sent into hostilities, combat-equipped deployments abroad, or major troop increases.
Its teeth are supposed to be the 60-to-90-day clock: once U.S. forces are introduced into hostilities without authorization, Congress must authorize the mission or the president must withdraw them.
Past administrations dating back to Nixon have often practiced evasion of the War Powers Act while preserving some level of formal respect for the law. They notified Congress. They filed reports. They argued that a specific operation did not trigger “hostilities,” or that the 60-day clock did not apply, or that an existing authorization covered the mission.
Rubio, speaking from the White House podium, did something rhetorically different: he said the law itself is “100% unconstitutional” and that the administration complies with “elements” of it for “good relations” with Congress. That turns evasion into doctrine.
The War Powers Resolution Reporting Project found that presidents have largely complied with the statute’s reporting requirements while contesting its more coercive provisions. That distinction matters: Rubio did not merely challenge the withdrawal mechanism or the 60-day clock. He cast the law itself as invalid.
Obama’s War Powers reporting followed the same executive-branch pattern. In a 2016 supplemental report to Congress, he said the report was provided “consistent with the War Powers Resolution” and “as part of my efforts to keep the Congress informed” about combat-equipped deployments.
He also said it was “not possible to know at this time the precise scope or the duration” of deployments necessary to counter terrorist threats — the kind of open-ended language that has long made it difficult for Congress to police the statute’s 60-day clock. Obama grounded the operations in his “constitutional and statutory authority as Commander in Chief and as Chief Executive,” including the 2001 authorization for the use of military force.
That is the bipartisan lineage Rubio’s answer exposed. What changed was not the executive branch’s instinct to preserve war-making room, but the bluntness with which the Trump administration is defending it.
Since the War Powers Resolution became law, presidents have continued to send reports to Congress even while disputing the statute’s force. This year, Trump has so far submitted three reports on Venezuela, Iran and Ecuador.
Trump’s own March 2 notice to Congress previewed the position Rubio later made explicit. In the letter, Trump said he had ordered precision strikes against targets inside Iran, including ballistic missile sites, maritime mining capabilities, air defenses and command-and-control facilities. He cited no congressional authorization, writing instead that he acted under his constitutional authority as commander in chief and chief executive. And he framed the notice itself not as compliance with a binding statute, but as part of his effort to keep Congress “fully informed, consistent with the War Powers Resolution.”
That wording is familiar in the history of war-powers fights. Presidents have often used “consistent with” language to preserve their claim that the statute does not control their independent constitutional authority. But Rubio’s briefing-room answer gave the formulation a harder edge. The administration, he said, does not acknowledge the law as constitutional; it complies with “elements” of it to maintain “good relations” with Congress.
The report also left the campaign’s endpoint undefined. Trump wrote that it was “not possible at this time to know the full scope and duration of military operations that may be necessary,” and said U.S. forces remained positioned for further action. The War Powers Resolution Reporting Project found that such vague duration language is common across administrations and often leaves Congress without the information needed to determine whether the 60-day termination clock has begun, stopped or continues to run.
Trump’s report shows the legal architecture; Rubio’s quote reveals the doctrine behind it.
The Clinton example
Democrats have used similar evasions, though usually with more lawyerly restraint.
Clinton’s bombing of former Yugoslavia became one of the clearest modern examples of War Powers evasion. In 1999, he ordered U.S. forces into a NATO-led air campaign against Yugoslavia without explicit congressional authorization.
The move prompted a lawsuit, Campbell v. Clinton, in which members of the House asked a federal court to find that Clinton had violated both the Constitution’s War Powers Clause and the War Powers Resolution by involving the United States in the air offensive without congressional authorization.
However the case Rep. Tom Campbell (R-CA) did not produce a definitive judicial ruling against Clinton. A federal judge dismissed the suit, holding that the lawmakers lacked standing to bring the claim. The D.C. Circuit later affirmed. The result was not legal vindication so much as judicial avoidance: the courts declined to referee a war-powers fight between Congress and the president.
Rep. Ron Paul, one of the plaintiffs in the case, denounced the ruling at the time.
“It should not be surprising that the courts, like the administration and more than fifty years of congresses, disregard the clear wording of the Constitution’s Article 1, Section 8, which gives the power to declare war to the House of Representatives and the Senate,” he said.
“Today’s ruling essentially prevents a Member of Congress from contesting a war that the President initiates without a declaration of war from Congress. It essentially creates a constitutional impasse that the courts are supposed to be there to resolve in the clear light of the Constitution. It is a shame the judge has rejected his constitutional obligation to hear the merits of the case,” he added.
Campbell v. Clinton shows how war-powers evasion becomes durable. Not because the courts endorse it, but because they refuse to stop it. Any president facing a divided or deferential Congress can invoke commander-in-chief authority, narrow the definition of “hostilities,” or argue that a military operation has ended before the War Powers clock runs out.
The case did not hand presidents a formal blank check. But it made clear that judicial restraint can function as executive permission. If Congress will not act collectively to enforce its war powers, the courts are unlikely to do it for them. That is the opening every modern president can exploit.
On March 26, 1999, Clinton notified Congress ‘consistent with the War Powers Resolution’ that U.S. forces had begun airstrikes in the Federal Republic of Yugoslavia (FRY) two days earlier in coalition with NATO allies.
Clinton’s notice used language strikingly similar to Trump’s March 2 Iran report. Clinton said he acted pursuant to his “constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive,” while taking into account the “views and support” expressed by Congress.
He then framed the report not as compliance with a binding statute, but as part of his effort to keep Congress “fully informed, consistent with the War Powers Resolution.” Trump’s notice followed the same architecture: Article II authority, congressional notification, no direct authorization. Rubio’s answer supplied the doctrine behind that architecture.
The congressional record of 1999 was a study in ambivalence. The Senate had passed a nonbinding resolution supporting NATO air and missile strikes. The House later rejected a declaration of war, rejected a resolution requiring Clinton to withdraw U.S. forces, and deadlocked on the Senate’s measure supporting the air campaign.
At the same time, Congress approved billions of dollars for the ongoing Kosovo operation. Sen. John McCain tried to pass a joint resolution authorizing Clinton to use “all necessary force,” but the Senate tabled it, 78-22.
By the time the 60-day War Powers deadline arrived on May 25, Clinton had neither received explicit authorization nor been forced to stop.
Barack Obama did not mainly argue that the whole law was unconstitutional in Libya. His administration argued that the Libya operation did not constitute “hostilities” under the War Powers Resolution, so the 60-day pullout rule did not apply. That is an evasion or narrowing of the statute, not the same as declaring the whole act unconstitutional.
Previous administrations often tried to avoid triggering the law. Rubio suggested the law cannot bind the president at all.
Rubio the Messenger
“Now we comply with it in terms of like notification, because we want to preserve good relations with Congress, right? And we do that. But even as a senator, I would say that the War Powers Act is 100% unconstitutional,” said Rubio.
That phrase — “good relations with Congress” — exposes the administration’s argument. It treats compliance as public relations management, not constitutional obligation. It treats Congress less as an oversight mechanism than as a political audience to be handled. The War Powers Act was not written as a diplomatic nicety between branches of government. It was written after Vietnam to force a decision: either Congress authorizes hostilities, or the president must bring them to an end.
Rubio’s formulation recasts that command as courtesy. The administration does not acknowledge the law as constitutional, he said, but complies with “elements” of it. In other words, the White House reserves the right to choose which parts of Congress’ war-powers framework it will honor.
“This is not this President’s position,” Rubo kept repeating. ” That has been the position of every single presidential administration since the day that law passes. An infringement on the President’s constitutional powers. We don’t acknowledge the law is constitutional, nonetheless, we comply with elements of it for purposes of maintaining, you know, good relations with Congress. And we want them to be involved. “
The operative word is “elements.” Not the law. Not the statute. Elements. Congress, in this telling, is not a coequal branch with the power to check a war. It is an audience to be managed.
Rubio insisted the administration wants lawmakers “involved” and “informed,” pointing to briefings with senators, House members, the intelligence committees and the Gang of Eight.
” I have gone on Capitol Hill, I don’t know, four times this year for all senators and all House members and Intel Committee and Gang of Eight. We want them to be involved in this, but, but I want to be clear on the point of the War Powers Act, it’s unconstitutional, and every president and every administration has taken that position.”
That distinction — between informing Congress and being bound by it — is why Rubio’s comments are likely to intensify the war-powers fight when the House and Senate return next week.
The constitutional problem Rubio exposed is simple: Congress may be brought into the room, even thanked for its interest, but it is no longer treated as the branch that authorizes war. It is the branch the president briefs while deciding for himself which restraints apply.
That is why the past evasions do not excuse Rubio’s answer. They explain its lineage. Rubio did not invent the executive branch’s resistance to the War Powers Act. He stripped it of euphemism.
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