Restoring War Powers: A 120th Congress Oversight Plan

Corey J. Biazzo, Esq.

15 min read

Restoring Congressional Control of War and the Military: A Lawful Investigative and Legislative Plan for the 120th Congress

By Corey J. Biazzo, Esq., Biazzo Law, PLLC, U.S. Navy veteran — Biazzo Law Government Oversight Program. Country over Party. Patriot over Partisan.

In short: In 2025 and 2026, the President used the military repeatedly without authorization from Congress. Examples include more than 70 lethal strikes on small boats, the January 3, 2026 raid that captured Venezuela's Nicolás Maduro, and a war with Iran that began February 28, 2026 and had cost at least $43.6 billion by September. Troops were also federalized over governors' objections and sent into American cities. Courts found that Defense officials likely violated the First Amendment in punishing a retired Navy captain who serves as a senator, a company that publicly disagreed with the Pentagon, and the press corps. The Constitution gives Congress, not the President, the power to declare war, raise and fund the armed forces, and make rules for them. This guide gives members of the 120th Congress, of both parties, a lawful plan to investigate, preserve evidence, compel testimony and documents with a valid legislative purpose, and pass laws that restore those checks for every future President.

Key facts at a glance

Matter	What happened	Congress or courts
Boat strikes	More than 70 strikes and about 240 deaths since Sept. 2, 2025, including a follow-up strike on two survivors	No authorization; war powers resolutions failed narrowly; Inspector General review limited to procedures
Venezuela	"Operation Absolute Resolve" captured Maduro on Jan. 3, 2026; Congress was not told in advance	A Justice Department opinion said the raid did not rise to the level of war; war powers votes failed
Iran	U.S. and Israeli strikes began Feb. 28, 2026; Pentagon cost estimate $43.6 billion as of Sept. 3	No authorization; both chambers passed a concurrent resolution in June 2026, which the President treats as non-binding; later votes split
Troops in U.S. cities	Guard federalized and sent to Los Angeles, Portland, and Chicago over governors' objections	Supreme Court denied a stay in Trump v. Illinois (Dec. 23, 2025); Ninth Circuit held the Los Angeles call-up unlawful (Oct. 23, 2026)
Sen. Mark Kelly	Censure and retirement-grade review after a video on illegal orders	Preliminary injunction (Feb. 12, 2026); appeal argued May 7, 2026
Anthropic	Designated a "supply chain risk" and barred from federal work after publicly limiting military uses of its AI	Preliminary injunction (Mar. 26, 2026), First Amendment and due process; appeals pending
Pentagon press	Credentials conditioned on not seeking unauthorized information	Policy found unconstitutional (Mar. 20, 2026); on appeal
FOIA	Requests about the boat strikes largely unanswered	Our own FOIA litigation is ongoing

What happened, and what do we know?

The record below separates court findings, votes in Congress, and facts that remain disputed. The government's positions are stated in the next section.

War without authorization from Congress.

Boat strikes. Since September 2, 2025, the military has carried out more than 70 lethal strikes on small boats in the Caribbean and eastern Pacific that the government says carried drugs. About 240 people have been killed. The administration told Congress the U.S. is in a "non-international armed conflict" with cartels. In the first operation, a follow-up strike killed two survivors clinging to wreckage; the White House confirmed it and called it lawful. The Pentagon Inspector General's review, opened in May 2026, does not address legality. See Investigating the Boat Strikes and Boat Strikes, Due Process, and What Congress Can Do in 2027.
Venezuela. On January 3, 2026, after strikes across Venezuela, U.S. special operations forces captured President Nicolás Maduro and his wife in Caracas in "Operation Absolute Resolve." Congress was not told in advance. A Justice Department Office of Legal Counsel opinion reportedly concluded that the raid did not rise to the level of war and was a law-enforcement arrest of an indicted defendant. A House war powers resolution had failed 211–213 in December 2025, and later efforts also failed. See Why the Seizure of Nicolás Maduro Was Unconstitutional.
Iran. U.S. and Israeli strikes on Iran began February 28, 2026, followed by ceasefires, a naval blockade, and fighting in the Strait of Hormuz. Congress never authorized the war. In June 2026, the House (215–208) and Senate (50–48) passed a concurrent resolution directing withdrawal, the first time both chambers had done so under the War Powers Resolution. The President does not treat concurrent resolutions as binding. A Senate joint resolution, which would be binding if signed or passed over a veto, failed in July. The Pentagon told Congress the war cost $43.6 billion as of September 3, 2026. The Defense casualty system has reported U.S. deaths and hundreds wounded. See U.S. Military Action in Iran and Can Congress Check Presidential War Powers After 2026?

The military at home. In 2025, National Guard troops were federalized and sent into Los Angeles, Portland, and Chicago over their governors' objections, and about 700 active-duty Marines were sent to Los Angeles. The Supreme Court denied the government's request to deploy in Illinois on December 23, 2025. The Ninth Circuit held on October 23, 2026 that the Los Angeles call-up "encroached on Congress's calling forth power." See Troops in U.S. Cities.

Retaliation for speech.

Sen. Mark Kelly. After Sen. Kelly, a retired Navy captain, joined a video reminding troops that they may refuse illegal orders, Secretary Hegseth censured him and began proceedings to cut his retired rank and pay. On February 12, 2026, Judge Richard Leon enjoined the action, finding it likely violated the First Amendment. The government appealed.
Anthropic. After Anthropic publicly refused to allow its AI model to be used for lethal autonomous warfare or mass surveillance of Americans, the Secretary directed contractors to stop doing business with it and designated it a "supply chain risk," a label previously used for foreign adversaries. On March 26, 2026, Judge Rita Lin granted a preliminary injunction. She found the company likely to succeed on its First Amendment retaliation and due process claims, and that the government had not followed the procedures Congress set in 10 U.S.C. § 3252. The government appealed. See Anthropic v. Department of War.
The press. A federal judge found the Pentagon's 2025 press policy unconstitutional on March 20, 2026. The Pentagon appealed.

Transparency. Our own Freedom of Information Act requests about the boat strikes, including records about the September 2 operation, have gone largely unanswered. See Massie, Hegseth, and Impeachment: Why Congress Must Act Now and Model Impeachment Articles Against Secretary Pete Hegseth.

What law governs war, the military, and the Defense Department?

The Framers split the war power on purpose. The President commands the forces Congress raises; Congress decides whether the nation goes to war and on what terms.

Authority	What it provides	Where it applies
U.S. Const. art. I, § 8, cls. 11–16	Congress declares war, raises and supports armies (no appropriation longer than two years), provides a navy, makes rules for the armed forces, and calls forth and regulates the militia	Venezuela, Iran, boat strikes, domestic deployments
Art. I, § 9, cl. 7	No money may be spent except under appropriations made by law	Funding limits on unauthorized operations
Art. II, § 2, cl. 1	The President is Commander in Chief	Command of forces Congress has raised
War Powers Resolution, 50 U.S.C. §§ 1541–1548	Consultation "in every possible instance"; a report within 48 hours; withdrawal within 60 days (plus 30) absent authorization	Every operation above
INS v. Chadha, 462 U.S. 919 (1983)	Legislative vetoes without presentment are invalid	Why concurrent resolutions are widely viewed as non-binding
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring)	Presidential power is "at its lowest ebb" when he acts against the expressed or implied will of Congress	Operations continued after both chambers voted to end them
Posse Comitatus Act, 18 U.S.C. § 1385; 10 U.S.C. § 12406; Insurrection Act, 10 U.S.C. §§ 251–255	Limits on using the military at home	Domestic deployments
Law of armed conflict; War Crimes Act, 18 U.S.C. § 2441	Protects the shipwrecked and those out of the fight	The September 2, 2025 follow-up strike
10 U.S.C. § 3252	Procedures for excluding a source as a supply-chain risk	The Anthropic designation
First Amendment; Fifth Amendment due process	Bars retaliation for speech and requires fair process	Kelly, Anthropic, the press
UN Charter art. 2(4)	Bars the use of force against another state, except in self-defense or with Security Council approval	Venezuela, Iran

The government's side, stated fairly.

Presidents of both parties have used force without specific authorization, including Truman in Korea, Clinton in Kosovo, and Obama in Libya. The executive branch has long argued that Article II permits limited operations that serve important national interests and do not rise to the level of "war" in the constitutional sense.
The administration describes the Maduro operation as the arrest of a fugitive indicted in 2020 on narco-terrorism charges, and the boat strikes as defense against cartels that kill Americans through drugs.
It argues that Iran posed an imminent threat, and that concurrent resolutions cannot bind the President under Chadha.
Courts have often declined to decide war-powers disputes. Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), held that members of Congress lacked standing to challenge the Kosovo campaign.
The Department argues that the Secretary may choose its vendors and discipline retired officers, who remain subject to military law.

Those arguments are a reason for Congress to act, not to wait. Courts rarely resolve war-powers disputes, so the remedy lies with Congress: the purse, authorizations, and binding law.

Where does Congress get the power to investigate, and what is the legislative purpose?

Congress may compel testimony and documents on any subject on which it could legislate. McGrain v. Daugherty, 273 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957). "[T]he scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) (quoting Barenblatt v. United States, 360 U.S. 109, 111 (1959)). Eastland itself held that a Senate subcommittee's inquiry into activities with "a potential for undermining the morale of the Armed Forces" was within the legitimate legislative sphere. Few subjects are more squarely legislative than war, the armed forces, and military spending.

Constitutional source	Legislative question	Records and witnesses it supports
Art. I, § 8, cl. 11 and the War Powers Resolution	Should Congress define "hostilities," make the 60-day limit self-executing, and require legal opinions to be shared?	War Powers reports, legal opinions on Venezuela, Iran, and the boat strikes, consultation records
Art. I, § 8, cls. 12–13 and § 9, cl. 7	Should funds be barred or conditioned for operations Congress has not authorized?	Cost data, reprogramming and transfer records, supplemental requests
Art. I, § 8, cl. 14 (rules for the armed forces)	Should Congress set rules for survivor rescue, targeting review, and military lawyers' independence?	Rules of engagement, execute orders, strike video, legal reviews
Art. I, § 8, cls. 15–16 (militia)	Should § 12406 and the Insurrection Act be clarified?	Domestic deployment orders and findings
Art. I, § 8, cl. 18 and procurement statutes	Should supply-chain designations of U.S. companies require notice, a hearing, and review?	The Anthropic designation file and the § 3252 process
Art. I, § 8, cl. 14 and title 10 retirement law	Should retirees' lawful political speech be protected from grade and pay reductions?	The Kelly censure file
Art. I, § 8, cl. 18; First Amendment	Should Congress set press-access standards for the Pentagon?	Press-policy drafts and credential decisions

Drafting tips. State the legislative purpose in the committee's resolution and each cover letter. Seek decision records and legal advice, not the identities of junior personnel. Requests for the President's own records, such as presidential directives authorizing strikes, should also meet Trump v. Mazars USA, LLP, 591 U.S. 848 (2020): explain why Congress needs them, why other sources will not do, and why the request is no broader than necessary. Classified records are reviewed in secure settings, not withheld. For enforcement, see Enforcing Congressional Subpoenas: A 120th Congress Playbook and Stephen Miller, Executive Privilege, and What Congress Can Do.

What does a lawful investigative plan look like?

Committees with jurisdiction.

House and Senate Armed Services: operations, rules of engagement, personnel, and procurement
House Foreign Affairs and Senate Foreign Relations: war powers and authorizations for the use of military force
Defense appropriations subcommittees: the cost of operations and funding limits
House and Senate Judiciary: the War Crimes Act, the Posse Comitatus Act, and the Justice Department's legal opinions
Intelligence committees: the intelligence behind targeting and threat claims
House Oversight and Senate Homeland Security and Governmental Affairs: the Freedom of Information Act, records, and inspectors general
Phase 1, Days 1–30: Organize and preserve. Adopt a resolution stating the legislative purpose. Send preservation letters (next section). Request every War Powers report and the legal opinions behind each operation. Ask GAO and the inspectors general to review costs, funding sources, and War Powers compliance, and ask the Pentagon Inspector General to expand its boat-strike review to legality.
Phase 2, Days 30–90: Voluntary requests. Request operation-by-operation accountings in classified and unclassified form. Invite transcribed interviews of military lawyers, retired senior officers, and career civilians. Open a secure whistleblower channel.
Phase 3, Days 60–150: Compulsory process. Subpoena records and witnesses where requests are refused, each tied to a named bill. Log privilege claims and negotiate accommodations in writing.
Phase 4, Days 90–180: Hearings. Hold four hearings: war powers (Venezuela and Iran); the boat strikes; the military at home; and retaliation (Kelly, Anthropic, the press). Hear first from independent experts and former officials of both parties, then from commanders in closed session, then from senior civilian leaders in public.
Phase 5, Day 180 on: Legislate. Attach reforms to the NDAA and defense appropriations bills, and consider tailored authorizations that set objectives, geography, reporting, and a sunset, or decline to authorize.

For witness-and-evidence models, see our investigative plan guide.

How should Congress preserve the evidence, and what should it seek?

Send preservation letters first to:

the Office of the Secretary of Defense and the Joint Staff;
U.S. Southern Command, Central Command, Northern Command, and Special Operations Command;
the military departments and the National Guard Bureau;
the Justice Department's Office of Legal Counsel;
the National Security Council, the White House Counsel, and the Archivist.

Cover operations-center chat, email, texts, and messaging apps (including disappearing-message apps), full-motion video and sensor data, targeting packages, legal reviews, casualty and damage assessments, cost records, and personal devices used for official business. Ask for written confirmation within 14 days.

Priority documents

Record	Why it matters	Bill it informs
War Powers reports and consultation records for each operation	What Congress was told, and when	War Powers reform
Legal opinions on Venezuela, Iran, the boat strikes, and domestic deployments	The legal basis relied on	Mandatory sharing of legal opinions
Execute orders and rules of engagement, including any directive on survivors	Who authorized what	Survivor-protection and targeting rules
Full video and strike logs for the September 2, 2025 operation	Whether survivors posed a threat	War Crimes Act clarity
Cost, munitions, and funding-source records, including transfers and reprogramming	How unauthorized operations were paid for	Funding limits
Casualty records for U.S. personnel and assessments of civilian harm	The human cost	Civilian-harm reporting
The Anthropic supply-chain designation file and the § 3252 record	Whether procurement power was used to punish speech	Procurement due process
The Kelly censure file and any directive to review other retirees' speech	Whether speech drove the action	Retiree speech protection
Press-policy drafts and credential decisions	Whether access turned on viewpoint	Press access standards
FOIA processing records for boat-strike requests	Why requests went unanswered	FOIA deadlines and penalties

Witness sequence (by role, not name)

Order	Witness	Purpose
1	Independent experts and former senior officials of both parties	Law, history, and the government's best arguments
2	Retired senior officers and former military lawyers	Command, law-of-war, and civil-military norms
3	Families of U.S. service members killed or wounded, and others affected (voluntary)	The human record
4	Combatant commanders and senior military lawyers (closed session as needed)	Orders, advice, and execution
5	Office of Legal Counsel and Defense Department General Counsel	Legal basis (expect privilege claims)
6	Secretary of Defense and senior civilian officials	Decisions and their basis

When to subpoena. Use subpoenas after written requests fail. Each should list the records, the period, the legislative purpose, and the bill it informs. Expect claims of executive privilege, attorney-client privilege, and classification. Log privilege claims, negotiate in writing, and keep a record of good-faith accommodation. United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977), describes an "implicit constitutional mandate to seek optimal accommodation."

What guardrails keep the investigation fair and keep people out of trouble?

Support the troops while questioning the decisions. Service members followed orders in difficult conditions. Focus on the decisions, legal advice, and orders above them. Do not publish the names of junior personnel.
Never urge disobedience. Members should never encourage a service member to refuse an order. Questions about lawful orders belong with military lawyers, the chain of command, an inspector general, or Congress.
Handle classified information by the book. Review it only in secure facilities with cleared members and staff. Seek declassification of specific items, and publish unclassified summaries.
Protect whistleblowers. The Military Whistleblower Protection Act, 10 U.S.C. § 1034, protects lawful communications with members of Congress and inspectors general. Civilian employees are protected under 5 U.S.C. § 2302(b)(8)(C). Classified concerns must go only through authorized channels. See Whistleblowers and Congress: A Guide for Federal Employees.
Respect the Fifth Amendment. Immunity (18 U.S.C. §§ 6002, 6005) can make later prosecution very hard. United States v. North, 910 F.2d 843 (D.C. Cir.), modified, 920 F.2d 940 (D.C. Cir. 1990).
Keep members inside the rules. The Speech or Debate Clause protects hearings and reports, not press releases. Hutchinson v. Proxmire, 443 U.S. 111 (1979). Avoid declaring anyone guilty of a war crime.
Do not interfere with pending cases. The Kelly, Anthropic, Pentagon press, and boat-strike lawsuits are ongoing. Seek decision records, not litigation strategy.
Treat both parties the same. Ask whether each rule would be acceptable under a President of the other party, and include the government's best arguments in every report.
Write general laws. United States v. Lovett, 328 U.S. 303 (1946), bars legislative punishment of named people.
Watch the clock. House subpoenas expire when a Congress ends. Committee on the Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008).

What laws should the 120th Congress pass?

Each reform applies to every future President and keeps the military able to repel attacks and defend Americans.

#	Reform	What it would do
1	Define "hostilities"	Close the argument that strikes, raids, and blockades are not "hostilities" under the War Powers Resolution
2	Self-executing funding cutoff	End funding automatically when the 60-day (plus 30) limit runs without authorization, with an exception to protect the safe withdrawal of forces
3	Binding joint-resolution fast track	Replace concurrent resolutions with expedited joint resolutions that can pass over a veto
4	Tailored authorizations	Any authorization must state objectives, enemies, geography, reporting, and a sunset date
5	Share legal opinions	Require legal opinions authorizing force to go to the relevant committees within 48 hours, with an unclassified summary
6	Rules for lethal force against suspected criminals	Require interdiction and arrest unless there is an imminent threat to life, and bar using force against people suspected only of drug trafficking without specific authorization
7	Survivor protection	Require rescue and medical care for survivors and report every case
8	Domestic deployment limits	Clarify 10 U.S.C. § 12406 and the Insurrection Act with defined triggers, written findings, governor consent across state lines, and time limits
9	Cost transparency	Require monthly cost reports for any operation lacking authorization, including munitions and equipment replacement
10	Procurement due process	Require notice, a chance to respond, and judicial review before designating a U.S. company a supply-chain risk, and bar designations based on protected speech
11	Retiree speech protection	Bar reducing a retiree's grade or pay because of lawful political speech
12	FOIA and records	Set firm deadlines and penalties for Defense Department FOIA responses on military operations, and require preservation of operational records

War powers votes in 2026 drew Republicans and Democrats on both sides, which suggests room for bipartisan reform. The NDAA and appropriations bills are the most practical vehicles. See Model Bills for the 120th Congress, Veto-Proof Reform Laws to Protect the Separation of Powers, and Article II of the U.S. Constitution: Presidential Power and Its Limits.

Let's talk

If you are a member of the 120th Congress, a committee staffer, a service member or civilian employee with lawful information to share, or a family member of someone affected, we welcome the conversation. We can help draft preservation letters, document requests, and model bill language. Contact Biazzo Law or visit the Biazzo Law Government Oversight Program.

Companion resources

Frequently asked questions

Who has the power to take the United States to war? Congress. Article I gives Congress the power to declare war and to fund and regulate the armed forces. The President commands the forces Congress raises and may repel sudden attacks.

Did Congress authorize the military actions in Venezuela, Iran, or the boat strikes? No. Congress has not authorized force against Venezuela, Iran, or drug cartels. Both chambers passed a concurrent resolution in June 2026 directing withdrawal from hostilities against Iran, which the President treats as non-binding.

Why don't courts stop unauthorized wars? Courts often decline to decide war-powers disputes, and members of Congress have been held to lack standing to sue. Campbell v. Clinton (D.C. Cir. 2000). That leaves the remedy with Congress: the power of the purse and binding law.

Can Congress subpoena military records, including classified ones? Yes, when the request serves a valid legislative purpose. Classified records are reviewed in secure facilities by cleared members and staff.

Will an investigation target service members? It should not. A lawful plan focuses on decisions, orders, and legal advice, protects junior personnel's identities, and protects lawful whistleblowing.

Is this partisan? It should not be. Presidents of both parties have stretched war powers, and members of both parties voted to rein them in during 2026. The same limits will bind every future President.

This post is for general information and public education. It is not legal advice, and reading it does not create an attorney-client relationship. Many matters described are pending, rulings are preliminary, and some facts remain disputed or classified. Nothing here accuses any individual of a crime. The Biazzo Law Government Oversight Program is nonpartisan and does not endorse or oppose any candidate or party. Service members and federal employees should get individual advice before disclosing information and should never disclose classified information outside authorized channels.