War by executive order: who holds the power to strike?

CNBC reports that U.S. Central Command has announced new strikes in the vicinity of the Strait of Hormuz following Iranian attacks on ships and American military personnel, with Iran in turn announcing its own retaliation. I cannot claim to know the operational particulars of this exchange — the weapons, the commanders, the casualties — but I know the constitutional structure within which all such acts must occur, and that structure is being tested in precisely the manner I most feared.

The compact is plain on this point. Article I, Section 8 vests in Congress the power to declare war, to raise and support armies, to grant letters of marque, and to make rules for the government of the land and naval forces. Article II names the President commander in chief — but that title was understood at the convention to mean direction of forces once committed, not an independent license to initiate hostilities. The two clauses are in deliberate tension. That tension is a feature, not a defect. It forces negotiation between the branch that deliberates and the branch that acts.

The danger I always named was this: that the executive, holding the instruments of force and the speed of decision, would gradually absorb the war power by accumulation of precedents rather than by any single usurpation. Each strike authorized without a formal declaration, each authorization for the use of military force left perpetually on the books, each presidential assertion of inherent commander-in-chief authority — these are the incremental steps by which the balance tips. If Congress has not specifically authorized strikes against Iranian territory, and if the executive is acting solely on its own account, then — whatever the provocation, and I do not minimize Iranian aggression — we have a constitutional problem that outlasts the immediate military one.

The Strait of Hormuz compounds the question. The Washington Examiner notes (in a separate report in today's menu) that these strikes target Larak Island at the strait's narrowest point — a chokepoint through which a significant fraction of the world's petroleum moves. To strike there is not a surgical response to a patrol-boat skirmish; it is an act that could cascade into broader conflict involving multiple nations and global commerce. The stakes alone argue for the deliberative body to be engaged. Federalist No. 51 reminded us that ambition must be made to counteract ambition; in foreign affairs, the ambition of the executive to be seen decisive must be checked by the legislature's ambition to govern — not by its deference to the executive.

I speak with humility on the military and strategic specifics — the precise capabilities of the forces involved, the exact geography, the classified intelligence — these lie beyond what I can responsibly assess. But the constitutional question is not technical. It is: by what authority does the executive order these strikes, and to whom is that authority answerable? If the answer is only to the President's own judgment, the compact has been quietly rewritten without amendment.

The structural question, then, is this: Does Congress intend to reassert its war-declaring power, or has it become content to ratify by appropriation whatever the executive begins? A republic that allows one branch to start wars and another merely to fund them has not preserved separation of powers — it has performed it. Whatever one believes about the wisdom of confronting Iran, the mechanism by which the decision is made will long outlive the immediate crisis. The arrangement we choose now becomes the precedent the next executive inherits, and the one after that. That is the weight I would have every senator and representative feel before they defer once more to a commander in chief's unilateral judgment.