A ‘Cease-Fire’ Does Not Stop the Clock on the War Powers Act

I f hostile actors tried to blockade American ports, do you think we’d regard it as an act of war?

The question arises because of Defense Secretary Pete Hegseth’s remarkable assertion in Senate testimony this week that the Trump administration need not heed the 1973 War Powers Act’s 60-day limit on military action absent congressional approval because the so-called cease-fire has stopped the statutory clock.

Hegseth gave that testimony just as the 60-day WPA window was about to close. We are now beyond it, with neither an administration request for a congressional authorization nor legislative action regarding the war. On Friday, President Trump appeared to supersede Hegseth’s analysis by asserting that he considers the WPA “totally unconstitutional.”

In point of fact, there is no cease-fire. The United States may have paused missile strikes against Iranian territory, but there has been no cessation of hostilities. It was only last week that Tehran’s Islamic Revolutionary Guards Corps (IRGC) attacked vessels in the Strait of Hormuz. American military bases in the region remain on high alert for potential strikes, with Iran having, again, rejected the Trump administration’s key demands in the stalled negotiations, which are a reopening of the strait (now de facto closed by the IRGC) and a verifiable abandonment of Iran’s nuclear weapons program.

But more fundamentally, while Iran is blocking traffic through the strait, the United States armed forces are blockading Iran. A blockade is an act of war and has been recognized as such for centuries, under international and American law.

After rebel forces fired on Fort Sumter in April 1861, President Lincoln ordered a blockade of ports in the Southern states that sought to secede. As a result, Union warships seized as “prizes” several merchant vessels and their cargoes. The owners of the ships sued in federal court, arguing that Congress had not authorized warfare and, therefore, that the blockade — an act of war — was unconstitutional. The dispute became known as the Prize Cases (1863). The Supreme Court held that the seizures were valid under the law of war. A war existed de facto, even if not congressionally declared, because war is “that state in which a nation prosecutes its right by force.”

That is exactly what a blockade does. The Court further held that because the United States had come under forcible attack, the president had not only the authority but the duty to marshal whatever force was necessary to quell the threat, regardless of whether Congress had acted. The blockade, patently, was an essential part of that warfighting response.

The United States is also a founding member of the United Nations. Its charter (in Article 2(4)), prohibits “the threat or use of force against the territorial integrity or political independence of any state,” and it recognizes (in Article 51) that states have an inherent right of self-defense if subjected to armed attack. More than a “threat,” a blockade is an actual use of force against a state’s territorial integrity and political independence; because it is a forcible attack, it triggers the right of forcible response — again, warfare.

To be clear, I am not a fan of the WPA, which was passed into law over President Nixon’s veto. Constitutionally speaking, it presents significant separation-of-powers issues — which appears to be what the president was getting at in his brief public comments. Practically speaking, the WPA has proven ill-conceived: In its effort to rein in unilateral presidential warmaking, Congress arguably gave the commander in chief a 60-day blank check to conduct combat operations without authorization. In reality, the WPA does not mean that the president has a greenlight to use force in any and all circumstances; and Congress need not wait 60 days to take legislative action against the use of force — by declaring it unauthorized, defunding it, etc.

Nevertheless, while presidents customarily object to the WPA on constitutional grounds, they also make grudging efforts to comply with it in order to avoid an inter-branch constitutional dispute. Until Trump’s outburst Friday, as he was about to leave Washington for Florida, that seemed to be the administration’s approach.

Hegseth did not claim that the WPA is a nullity. He instead took the untenable position that there is a cease-fire that has stopped the 60-day clock. There is no cease-fire. The blockade of Iran — which I support, for what little that is worth — is a wartime use of force.

I end by repeating what I’ve said from the start: Because of Iran’s record of belligerence against the United States, and because of existing legislation (particularly the post-9/11 Authorization for the Use of Military Force), President Trump probably did not need to seek congressional authorization to levy war against Iran. Nevertheless, as the president’s plummeting approval ratings remind us, in a democratic republic, a military venture that goes on for weeks, months, or longer needs public support to succeed. The best way to rally public support and bolster constitutional legitimacy is to seek congressional authorization.

That is still true, regardless of what one thinks of the WPA. But if you’re taking the position that the WPA is valid law — as the Trump administration seemed to be doing until Friday morning — then the 60-day clock for unauthorized military action cannot be suspended by pretending there is a “cease-fire” even as our forces impose a blockade on the enemy.