Can Congress Check Presidential War Powers After 2026?
Yes — the Congress Americans elect on November 3, 2026, will have real constitutional tools to reclaim its role over the use of military force, both at home and abroad. But it will also face a President who holds genuine Commander-in-Chief powers under Article II, a veto that takes two-thirds of each chamber to override, and courts that often decline to referee war-powers disputes.
The new 120th Congress convenes on January 3, 2027. Whichever party controls it, its members will inherit three unresolved questions that came to a head in the past fourteen months:
At home: When may a President federalize a State's National Guard and send troops into an American city? The Supreme Court addressed this in Trump v. Illinois (No. 25A443) on December 23, 2025.
Abroad, in a single operation: May a President order a major military raid into a foreign country — the January 3, 2026 capture of Venezuela's Nicolás Maduro — without notifying or consulting Congress?
Abroad, in sustained war: What happens when hostilities with Iran, which began on February 28, 2026, continue for nearly eight months without a declaration of war or an authorization for use of military force?
This is not a question of left or right. Presidents of both parties have stretched war powers, and Congresses of both parties have let them. The question is whether the branch the Constitution charges with deciding war will do its job. Country over party. The Constitution over personalities.
Biazzo Law's Government Oversight Program addressed the first of these questions directly in an amicus curiae brief filed at the U.S. Supreme Court. This post explains what happened, what the Court decided, what the President's legitimate powers are, and what a new Congress can — and cannot — realistically do.
What happened? Three flashpoints in fourteen months
Each episode raises a different legal question, but all three share one theme: military force used on the President's authority alone, with Congress reacting after the fact.
1. Chicago: the National Guard in an American city (October–December 2025)
On October 4, 2025, the President called 300 members of the Illinois National Guard into federal service under 10 U.S.C. § 12406(3), citing protests and violence directed at federal immigration officers near Chicago, particularly at the ICE processing facility in Broadview. Members of the Texas National Guard were federalized and sent to Illinois the next day. The Governor of Illinois had declined to consent.
The Government's account described serious threats: officers assaulted, vehicles rammed, a bounty placed on a senior Border Patrol official. Illinois's account described mostly small protests that state and local police had brought under control, with ICE's own on-site managers praising that coordination. The district court credited Illinois's evidence and entered a temporary restraining order. The Seventh Circuit allowed the Guard to remain federalized but kept the bar on deployment. The case then went to the Supreme Court, where the stay was denied on December 23, 2025 (discussed below). Within days, the President announced that Guard deployments in Chicago, Los Angeles, and Portland would end, while warning they could return in a different form.
2. Venezuela: the capture of Nicolás Maduro (January 3, 2026)
On January 3, 2026, U.S. forces conducted strikes across Venezuela and captured President Nicolás Maduro and his wife, Cilia Flores, in an operation the administration named Operation Absolute Resolve. Both were flown to New York to face narco-terrorism, drug-trafficking, and weapons charges first brought in 2020.
The administration and its supporters characterized the operation as a law-enforcement arrest of indicted fugitives, not an act of war, and argued that Congress is not notified before arrests. Critics across the spectrum noted that it involved thousands of personnel and more than 150 aircraft, that no member of Congress appears to have been notified in advance, and that neither chamber had authorized force against Venezuela. A Venezuela war powers resolution had already failed in the House, 211–213, in December 2025, and later efforts in both chambers did not pass. Our earlier analysis of the operation is linked in Related reading below.
3. Iran: a sustained war without authorization (February 2026 – present)
The United States and Israel began large-scale strikes on Iran on February 28, 2026. The conflict has since included a Pakistan-brokered ceasefire in April, the Islamabad Memorandum signed June 17, a collapse of that ceasefire on July 8, a U.S. naval blockade, and attacks on shipping in the Strait of Hormuz. As of September 2026, the Department of Defense estimated the war's cost at $43.6 billion. In October 2026, major combat is in an uneasy pause while diplomacy remains stalled.
Congress has never declared war on Iran or passed an authorization for use of military force against it. It has voted repeatedly:
Date | Chamber and measure | Result |
Sept. 24, 2026 | Senate war powers resolution | Failed |
Sept. 15, 2026 | House war powers resolution | Passed 220–204 (7 Republicans in favor) |
July 23, 2026 | Senate joint resolution (would have required the President's signature) | Failed 47–49 |
July 23, 2026 | House concurrent resolution | Passed 214–208 |
June 23, 2026 | Senate concurrent resolution | Passed 50–48 |
June 3, 2026 | House concurrent resolution | Passed 215–208 (4 Republicans in favor) |
The pattern matters. The resolutions that passed were concurrent resolutions, which never go to the President. Under the Supreme Court's decision in INS v. Chadha (1983), such a resolution is widely understood to lack binding legal force. The joint resolutions that would bind the President — and that he could veto — have not cleared both chambers. In other words, Congress has registered disapproval without exercising its full constitutional authority.
What did the Supreme Court decide in Trump v. Illinois?
The Court denied the Government's stay application on December 23, 2025, holding that the Government had not shown that § 12406(3) let the President federalize the Guard to protect federal personnel and property in Illinois. The decision came at a preliminary stage and reflects the Court's view of likely legal conclusions, not a final judgment.
The majority's reasoning
Section 12406(3) allows the President to call up the Guard when he "is unable with the regular forces to execute the laws of the United States." The Government argued "regular forces" meant civilian officers such as ICE and the Federal Protective Service. After asking the parties for supplemental briefing on that question, the Court concluded the term likely means the regular U.S. military.
That reading has a consequence. The Posse Comitatus Act, 18 U.S.C. § 1385, generally bars the military from executing the laws unless the Constitution or an Act of Congress expressly authorizes it. So before invoking § 12406(3), the President likely must have lawful authority to use the regular military to execute the laws, and be unable to do so with it. The Government had not identified such authority. It relied on the President's inherent power to protect federal personnel and property — but it also maintained, consistent with long-standing Executive Branch practice, that such protection is not "executing the laws." The Court found it hard to see how the same activity could count as executing the laws under § 12406(3).
The separate opinions
The justices did not speak with one voice, and the separate writings are worth reading in full:
Justice Kavanaugh agreed with the result and with the "regular forces" reading, but would have ruled more narrowly: the President had not yet made the required finding that he was unable to act with the military. He warned that the majority's reasoning could matter in a future emergency, such as a mob threatening a federal courthouse, and observed that it might push Presidents to use the regular military rather than the Guard.
Justice Alito, joined by Justice Thomas, dissented. He argued the Court raised an issue the parties had waived, effectively added words to the statute, and left federal officers exposed to serious violence. He also questioned whether the Posse Comitatus Act applies to a federalized Guard at all.
Justice Gorsuch dissented separately. He listed the many unanswered questions — reviewability, the Insurrection Act, inherent Article II power, and when, if ever, the professional military may be used for domestic law enforcement — and would have decided the application on the arguments the parties preserved.
The disagreement inside the Court is itself a signal to Congress. Gorsuch's list of open questions is, in effect, a list of questions Congress can answer by statute.
Our amicus brief
On November 3, 2025, Corey J. Biazzo, Esq., through Biazzo Law's Government Oversight Program, filed an amicus curiae brief in support of Illinois and the City of Chicago, urging the Court to deny the stay. The brief argued that § 12406's statutory conditions were not met, that Justice Jackson's Youngstown framework placed the action at the "lowest ebb" of presidential power, that the Posse Comitatus Act and the Tenth Amendment limit domestic military policing and cross-state Guard deployments, and that the Founders' distrust of peacetime standing armies reinforces those limits.
The Court denied the stay, and its majority reasoning turned in part on the Posse Comitatus Act, an issue the brief emphasized. To be precise, an amicus brief does not represent any party, and the Court's order did not state that it adopted any argument in our brief. Many other amici, including former Army and Navy Secretaries and groups of States, also filed.
Official Supreme Court docket, No. 25A443: supremecourt.gov/docket/docketfiles/html/public/25A443.html
Read the brief (Supreme Court PDF): Brief Amicus Curiae of Corey J. Biazzo, Esq., in Support of Respondents
Our filing-day post: Defending the Constitution: My Supreme Court Brief on Presidential Overreach in Illinois & Chicago v. Trump
What powers does Article II actually give the Commander in Chief?
Substantial ones — and any honest reform effort has to start by respecting them. Article II, Section 2 makes the President "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Section 3 directs him to "take Care that the Laws be faithfully executed." Congress cannot legislate those powers away.
What the Constitution, the courts, and long practice recognize:
Repelling sudden attacks. The Framers changed the draft power to "make" war into the power to "declare" war, leaving the President free to repel sudden attacks. The Prize Cases (1863) upheld President Lincoln's blockade without prior congressional action.
Command of forces Congress has raised. Once forces exist and are lawfully deployed, tactical and operational decisions belong to the President, not to Congress or the courts.
Protecting federal personnel and functions. In re Neagle (1890) and In re Debs (1895) recognized inherent executive authority to protect federal officers and federal functions. The Justice Department's Office of Legal Counsel has long relied on this "protective power," and Justice Kavanaugh noted that Trump v. Illinois did not disturb it as applied to the regular military.
Deference on calling forth the militia. Martin v. Mott (1827) held that the President's judgment on whether a statutory exigency existed was conclusive on subordinate officers. The Government argued that it forecloses judicial review; the lower courts and the Ninth Circuit read it more narrowly, and the Supreme Court did not resolve the point.
Foreign affairs and intelligence. The executive's institutional advantages in secrecy, speed, and unity of command are real. Courts traditionally give weight to them, as in Department of the Navy v. Egan (1988).
Statutory delegations. Congress has itself handed the President broad standing authorities, including the Insurrection Act (10 U.S.C. §§ 251–255) and older authorizations for use of military force.
History also cuts against any claim that this is a one-party problem. President Truman sent troops to Korea without a declaration. President Clinton continued the Kosovo air war past the War Powers Resolution's 60-day clock. President Obama's administration concluded that months of strikes in Libya in 2011 were not "hostilities" under the Resolution. Each time, the Congress of the day complained but did not cut off funds.
The defenders of the current administration's actions make serious arguments that deserve a fair hearing: that the Maduro operation was an arrest of an indicted fugitive using military capabilities; that federal officers in Chicago faced real violence and inadequate local help; and that Iran's nuclear program and attacks on Americans justify force. Readers should weigh those arguments. Our point is narrower and structural: even good policy goals must travel through the constitutional process. Under Justice Jackson's Youngstown framework, presidential power is at its maximum when Congress has authorized it and at its "lowest ebb" when Congress has expressly or implicitly forbidden it. Congress decides which zone the President operates in.
What can a new Congress do after the 2026 midterms?
Article I gives Congress the decisive powers over war: to declare it, to raise and fund armies, to make rules for the armed forces, and to "provide for calling forth the Militia." A new Congress can change course by using those powers through binding law — not just resolutions of disapproval. Here are the main tools, and the practical limit on each:
Tool | What Congress can do | Practical limit |
Power of the purse (Art. I, § 9, cl. 7) | Bar funds for specific operations, set deadlines, or condition money on authorization. Precedent: the Case-Church Amendment (1973) ended funding for combat in Indochina. | Must pass both chambers and survive a veto, or ride on must-pass bills such as appropriations or the NDAA. |
Binding joint resolution | Direct withdrawal from hostilities with Iran or elsewhere, with the force of law. | A veto needs two-thirds of each chamber to override. |
Authorize narrowly, or decline to | Pass a tailored AUMF with defined objectives, geography, reporting, and a sunset — or pointedly withhold one. | A President may still claim inherent Article II authority. |
War Powers Resolution reform | Define "hostilities," close the concurrent-resolution gap left by Chadha, and add an automatic funding cutoff after 60 days. | Reform itself needs a veto-proof majority or a cooperative President. |
Clarify 10 U.S.C. § 12406 | Define "rebellion," "unable," and "regular forces"; require written findings, consultation with the affected Governor, and limits on sending one State's Guard into another. | Courts will apply the new text; statutory changes cannot shrink core Article II power. |
Insurrection Act reform | Add clear triggers, time limits, and reporting for 10 U.S.C. §§ 251–255, which Trump v. Illinois did not address. | Same veto dynamics. |
Oversight | Hold hearings, issue subpoenas, require OLC legal opinions and notification reports, and use GAO and inspectors general. | Executive privilege disputes can be slow to resolve in court. |
Senate confirmation | Press nominees for the Defense Department, the Justice Department, and the Joint Chiefs for on-the-record commitments on war powers. | Relies on senators' willingness to hold firm. |
Impeachment | The Constitution's ultimate check for "high Crimes and Misdemeanors" by any President. | Conviction requires two-thirds of the Senate; history shows it is rarely achieved. |
The limits a new Congress must respect
The veto math. Unless a President agrees, almost every binding reform needs two-thirds of both chambers. That is why the most durable reforms usually travel in bipartisan, must-pass legislation such as annual defense authorization and appropriations bills.
The courts' reluctance. Federal courts often decline to decide war-powers disputes between the political branches. In Campbell v. Clinton (D.C. Cir. 2000), members of Congress lacked standing to challenge the Kosovo campaign. Congress cannot count on judges to enforce its prerogatives; it has to use its own.
Article II itself. No statute can strip the President of the power to repel sudden attacks or to command forces in the field. Smart reform targets the gray zone — sustained hostilities and domestic deployments — rather than emergencies.
Consistency across administrations. Any rule a new Congress writes will bind the next President of either party. That is a feature, not a bug. Members should ask one question of every proposal: would I support this rule if the other party held the White House?
Why the 2026 election matters for this question
The current Congress has shown that a bipartisan minority of members in the majority party is willing to break ranks on war powers. The Iran resolutions drew four to seven House Republicans. But it has not produced a binding law. The 120th Congress, sworn in January 3, 2027, will decide whether to keep registering objections or to legislate. Voters can ask every candidate, regardless of party, a simple question:
Will you vote to require congressional authorization before American troops are sent into sustained combat abroad or deployed on American streets?
Why should every American care?
Because the rules written for one President will be used by the next one — and the costs of war are paid by ordinary Americans, not by the officials who start it.
Your vote is how war is supposed to be decided. The Constitution routes the decision to go to war through the branch closest to the people, so that it requires public debate and a recorded vote. When that step is skipped, voters lose their say over the most serious decision a government makes.
Service members deserve clear lawful authority. Our troops take an oath to the Constitution, not to a person or a party. A clear congressional authorization gives them a defined mission and the full backing of the nation. Our gratitude to them is not in question.
The bills come home. The Iran war's estimated cost passed $43 billion by September 2026, and oil prices have stayed near or above $100 a barrel this fall. Families feel that at the pump and in the federal budget.
Domestic deployments affect your city. If a statute's limits on sending troops into American cities are unclear, a future President of either party could test them in your community, over your Governor's objection.
Federalism protects you. The Tenth Amendment and the dual State–federal structure of the National Guard exist so that no single official controls all of the nation's armed power.
Precedent never expires. A power claimed and left unchallenged becomes the baseline for the next administration. The Founders listed among their grievances against King George III that he "kept among us, in times of peace, Standing Armies without the Consent of our legislatures" and "affected to render the Military independent of and superior to the Civil power."
This is patriotism over party. Supporting the troops, opposing hostile regimes, and insisting that our own government follow the Constitution are not competing values. They belong together.
Frequently asked questions
Can the President go to war without Congress?
The President may use force to repel sudden attacks and to protect Americans under Article II. Sustained hostilities, under the Constitution's design and the War Powers Resolution, require a declaration of war or a statutory authorization. In practice, Presidents of both parties have used force without either, and Congress has rarely stopped them.
What is the War Powers Resolution?
The War Powers Resolution of 1973 (50 U.S.C. §§ 1541–1548) requires the President to report to Congress within 48 hours of introducing forces into hostilities. It requires withdrawal within 60 days, with a possible 30-day extension, unless Congress authorizes the action.
Are the Iran war powers resolutions Congress passed in 2026 binding?
The concurrent resolutions that passed both chambers in June 2026 do not go to the President and are widely viewed as non-binding after INS v. Chadha (1983). A binding joint resolution would need the President's signature or a two-thirds override of a veto.
What did the Supreme Court decide in Trump v. Illinois?
On December 23, 2025, the Court denied the Government's request to deploy federalized National Guard troops in Illinois. It concluded that "regular forces" in 10 U.S.C. § 12406(3) likely means the U.S. military, and that the Government had not identified authority allowing the military to execute the laws in Illinois. Justice Kavanaugh concurred in the judgment; Justices Alito, Thomas, and Gorsuch dissented.
What is the Posse Comitatus Act?
The Posse Comitatus Act, 18 U.S.C. § 1385, makes it a crime to use the Army, Navy, Marine Corps, Air Force, or Space Force to execute the laws, except where the Constitution or an Act of Congress expressly authorizes it.
When does the new Congress take office?
The midterm elections are on November 3, 2026. Under the Twentieth Amendment, the new Congress convenes at noon on January 3, 2027.
Did Biazzo Law file a brief in Trump v. Illinois?
Yes. Corey J. Biazzo, Esq. filed an amicus curiae brief on November 3, 2025, supporting Illinois and the City of Chicago and opposing the stay. The official docket is at supremecourt.gov, No. 25A443.
The Biazzo Law Government Oversight Program
This analysis is part of the Biazzo Law Government Oversight Program, a nonpartisan public-service initiative that applies the same constitutional standards to every President, party, agency, and official. The Program:
Files amicus curiae briefs in significant constitutional cases at the U.S. Supreme Court, including Trump v. Illinois
Submits and litigates Freedom of Information Act requests, including requests on war powers and the use of military force without congressional authorization
Publishes plain-language explanations of constitutional rights and pending cases
Supports only lawful, peaceful civic engagement — never violence, threats, harassment, or intimidation of any official or public employee
The Program examines the current administration because it presently exercises federal executive power. It will hold future administrations of either party to the same standards.
Follow our work: Government Oversight Program and amicus tracker · Media inquiries or constitutional litigation: (703) 297-5777 · corey@biazzolaw.com
Related reading
Disclaimer: This post is for general informational and educational purposes only and is not legal advice. It does not create an attorney-client relationship. Biazzo Law's participation in U.S. Supreme Court matters was through amicus curiae briefing and does not imply party representation. Courts are not required to adopt any amicus argument, and past results do not guarantee future outcomes. Biazzo Law does not support or oppose any political party or candidate.
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