The Exemption

The War Powers Act's 60-day clock expired today. The mechanism ran exactly as designed — and produced nothing, because that is what it produces when Congress decides the accountability that comes with the power is too expensive.

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On May 7, the D.C. Circuit Court of Appeals will hear oral arguments in Kelly v. Hegseth. The question before the three-judge panel: whether the Pentagon can reduce a senator’s military retirement pay because he told servicemembers that our laws require them to refuse illegal orders.

Mark Kelly made that statement last November in a video posted on social media. He is a retired Navy captain, a member of the Senate Armed Services Committee, and a senator from Arizona who has voted four times to invoke the War Powers Resolution and force a congressional vote on whether the Iran war should continue. In January, the Pentagon responded to his video by moving to cut his retirement grade and pay, calling the statement “seditious.” Kelly filed suit. A federal judge blocked the cut in February, finding the government had “trampled” on his First Amendment rights. The Trump administration immediately appealed.

This week, the War Powers Act’s 60-day clock expired. The same constitutional framework Kelly was punished for invoking is the one the war’s continuation violates. The D.C. Circuit will hear his case seven days after the law requiring congressional authorization quietly ran out.

The War Powers Resolution was passed in 1973 to prevent precisely this situation: a president conducting an extended military operation without the deliberate consent of Congress. The law gives the executive 60 days to obtain authorization, after which hostilities must cease. The U.S. campaign against Iran began February 28. The Trump administration submitted its formal notification to Congress on March 2. The clock expired May 1.

Congress has not authorized the war. The Senate has voted, at least four times, on Kaine’s S.J.Res.59; each vote failed largely along party lines, 47-52, with Senator Rand Paul joining Democrats and Senator John Fetterman opposing. The White House made no public effort to build support for authorization. Vice President Vance, asked about the deadline, said: “The War Powers Act is fundamentally a fake and unconstitutional law.”

Senator Collins said, before the deadline arrived, that she believed the law’s requirements were triggered and that the president would need authorization to continue. Senator Tillis signaled similar concern. Neither concern changed the vote count. Collins had previously supported a war powers resolution with eight Republican co-signatories; in practice, the votes weren’t there.

This is being reported as presidential defiance of a constitutional limit. That framing is not wrong, but it is incomplete. It locates the mechanism’s failure in the executive’s refusal. It leaves out the legislature’s preference.

The War Powers Resolution was designed to force Congress to assert itself. It assumed Congress would want the power it was being given — that lawmakers would seize the opportunity to vote, to put themselves on record, to participate in decisions about whether their constituents go to war. What the Act could not survive is a Congress that prefers not to vote. Not because it can’t pass the authorization, and not because it fears the president’s veto. Because a vote means accountability. A vote for the war means owning it. A vote against means opposing a military operation that polls favorably with most of the Republican base and large portions of the independent electorate. Silence is the rational move when accountability is the cost.

Max Rose, an Afghanistan veteran and former congressman now with VoteVets, described what a congressional vote would actually require: “The Congressional vote isn’t just a formality. It forces the president and military to come up with an articulated plan, goals, metrics, an exit strategy, and more.” None of those documents exist. Not because Trump refused to produce them. Because the vote that would require them was never held.

The mechanism has worked, twice, under specific conditions. In 1983, Congress passed the Multinational Force in Lebanon Resolution, a joint authorization and limitation that Reagan signed; the Marines were withdrawn after 241 were killed in the Beirut barracks bombing. In 1991, President George H.W. Bush sought congressional authorization for the Gulf War before the 60-day deadline, voluntarily — a presidential choice, not a congressional assertion. In both cases the mechanism ran because military catastrophe or presidential decision created the preconditions. The law itself didn’t compel anything.

In Kosovo in 1999, Clinton continued operations for 78 days without authorization. The House voted both to require withdrawal and to authorize continued operations — both measures failed. The Senate passed authorization; the House blocked it. The mechanism collapsed under congressional division. Clinton invoked no formal escape clause; Congress simply failed to produce a unified response, and the operation continued.

In Libya in 2011, Obama claimed that drone strikes and a support role didn’t constitute “hostilities” under the WPR’s meaning. Executive interpretation created an exit route the law hadn’t anticipated.

The pattern across 53 years is not presidential defiance of a determined Congress. It is Congress finding, each time, that the accountability the law demands is more expensive than the silence the law permits.

Oona Hathaway became president of the American Society of International Law on April 23, 2026, one week before the clock expired. In her inaugural remarks at the ASIL Annual Meeting, she described international law as under strain in ways not seen in generations. The organization she leads had, weeks earlier, co-signed a statement by more than 100 U.S.-based international law experts finding that the U.S. strikes on Iran violated the UN Charter and that the conduct of the war raised serious concerns about violations of international humanitarian law.

The mechanism for making the war lawful under domestic law — congressional authorization — has been blocked four times by simple majority vote. The mechanism for making it lawful under international law — UN Security Council authorization — was never sought. Hathaway took the presidency of the American Society of International Law at the moment when her organization’s formal legal position is being demonstrably ignored in real time, and the institutional mechanisms for remedy are not running.

This is not a story about executive overreach and an institution defending itself. It’s a story about what happens when the institutions designed to check executive overreach conclude, each in their own way, that the cost of actually checking it is higher than the cost of letting it continue. Congress prefers not to vote. The courts have historically declined War Powers standing. The international legal architecture produces statements, not compulsion. The mechanism exists. The accountability it requires is the variable that fails.

The Day 62 record will show: the War Powers Act ran its clock. The war did not stop. A senator’s pension is being contested in federal court because he invoked the constitutional framework that the war’s continuation violates, and the court hearing that case will hold arguments next week, after the deadline that argument is about has already passed.

The exemption here is not Trump’s. It belongs to a Congress that designed a mechanism to make itself responsible, then chose, four times, not to use it.

Sources

- Solen